district court rules 2005

As at 25 Mar 2020 Version 02-j0-00 Published on www.legislation.wa.gov.au

Western Australia

District Court of Western Australia Act 1969

District Court Rules 2005

As at 25 Mar 2020 Version 02-j0-00 page i Published on www.legislation.wa.gov.au

Western Australia


Contents

Part 1 — Preliminary

1. Citation 1 2. Commencement 1 3. Terms used 1 3A. Forms under Restraining Orders Act 1997 3 4. File and serve document, meaning of 3 5. Application of these rules 4 6. Rules of the Supreme Court 1971, application of 4

Part 2 — Administrative matters

Division 1 — Registry matters 7. Electronic transmission of signatures and Court’s

seal 6

Division 2 — Registrars’ jurisdiction 8. Registrars’ general jurisdiction 6 9. Legally qualified registrar may be ordered to take

account etc. 7 10. Registrar may be required to calculate interest etc. 8 11. Registrars’ matters, when may be listed before

judge 8 12. Registrar may refer matter to judge 8 13. Registrars’ powers to obtain evidence etc. 9 14. Registrars’ office taken to be judges’ chambers 9

Division 3 — Appeals from registrars 15. Appeal lies from registrar to judge 9 16. Directions hearing for appeals from registrars 10


Contents

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Part 3 — Filing and service of

documents

Division 2 — Filing documents by fax or by

using ECMS 19. Some documents may be filed by fax 12 20. Some documents may be filed by using ECMS 13

Division 3 — Serving documents 21. Service of documents 16 21A. Service of documents by Court 16

Division 4 — Miscellaneous 22A. RSC Order 9A rule 2 and Order 12 rule 2

modified: form of memorandum of appearance 17 22C. Party may not be required to state geographical

address 18 22. Summonses for matters in chambers 18 23A. Affidavits, form of 19 23B. RSC Order 58 rule 14 modified: form of

originating summons 19 23C. Enforcement of order under another Act giving

jurisdiction 19

Part 4 — Case management

Division 1 — Preliminary 23. Terms used 21 24. Case management direction, meaning of 21 25. Enforcement order, meaning of 24

Division 2 — Case management generally 26. Court may make case management directions etc. 24 27. Case management hearing, registrar may hold 25

Division 3 — Case management of cases

commenced by writ

Subdivision 1 — Preliminary 28. Application 25 29. Various RSC provisions do not apply 25 31. Case management hearing, holding of 25 32. Case management hearing, conduct of 26 33. Case management directions etc. may be made in

other proceedings 27


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34. Duties of parties at case management hearing etc. 27

Subdivision 2 — Mediations 35. Mediations 28 35AA. Settlement at mediations 29 35A. Mediation may serve as pre-trial conference 29

Subdivision 3 — Entry for trial, and ancillary

matters 36. Legal costs, lawyer to notify client of 30 37. Entering a case for trial 31 38. Plaintiff failing to enter case for trial,

consequences 31 38A. After entry for trial, no interlocutory application

without leave 32 38B. Countermanding entry for trial 33

Subdivision 4 — Pre-trial conference, and ancillary

matters 39. Pre-trial conference, preliminary matters 34 40. Pre-trial conference 34 41. Pre-trial conference, ancillary matters 36

Subdivision 5A — Settlement of cases 42A. Offers of compromise 37

Subdivision 5 — Listing conference 42. Listing conference, orders for purpose of 38 43. Listing conference 38

Subdivision 6 — Inactive cases 43A. Term used: Inactive Cases List 40 44. Effect of non-compliance with Notice of Default 40 44A. Cases inactive for 12 months deemed inactive 40 44B. Registrar may issue summons to show cause 40 44C. Springing order that case be put on Inactive Cases

List 41 44D. Parties to be notified of case being on Inactive

Cases List and to advise clients 41 44E. Consequences of case being on Inactive Cases List 42 44F. Removing cases from Inactive Cases List 42 44G. Certain inactive cases taken to have been

dismissed 43


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Part 4A — Documents to be filed,

served or delivered before trial

45A. Application 44 45B. Term used: trial date 44 45C. Particulars of damages 44 45D. Building and engineering contracts, actions

involving claims under 45 45E. Index of expert witness reports 46 45F. Papers for judge 47 45G. Reception of plans etc. in evidence 47 45H. Outline of submissions 48 45I. List of witnesses 50

Part 5 — Obtaining evidence

Division 1 — Discovery 46. RSC Order 26 modified in actions commenced by

writ 51

Division 2 — Interrogatories 47. RSC Order 27 modified 51

Division 3 — Medical examination 47A. RSC Order 28 modified 52

Part 5A — Expert evidence

47B. Terms used 54 47C. RSC Order 36A does not apply 54 47D. General procedural matters 55 47E. Expert medical evidence in personal injury cases 55 47F. Other expert evidence 57 47G. Derogation of privilege 58 47H. Enforcing this Part 58 47I. Court may limit expert evidence 58

Part 5BA — Subpoenas

48AA. RSC Order 36B rules 1 and 2 modified: subpoena

must not require both attendance and production 59 48AB. RSC Order 36B rule 3 modified: form of subpoena 59 48AC. RSC Order 36B rule 5A modified: form of

subpoena 60


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48AD. RSC Order 36B rule 7 modified: USB devices not

permitted 60 48AE. Subpoenas to produce not addressed to health

professionals 60 48AF. Subpoenas to produce addressed to health

professionals 60 48AG. RSC Order 36B rule 10 modified: disposal of

documents and things produced 61 48AH. RSC Order 36B rule 11 modified: losses and

expenses incurred in compliance 61

Part 5B — Applications before trial

48A. Amending pleadings, RSC Order 21 modified 63 48B. Interlocutory applications after listing for trial 63

Part 6 — Appeals to the Court

49. Terms used 65 50. Appeal, nature of 65 51A. Time for appealing 65 51. Appeal, commencement of 66 52. Primary court to supply records when given notice 68 53. Appeal, responding to 69 55. Directions hearing 70 56A. Dismissing appeals for want of prosecution 71 56. New grounds of appeal etc. only with leave 71 57. Court’s powers as to appeals 72 58A. Orders in appeals, applying for 73 58B. Consenting to orders 73 58. Discontinuance 74 59. Costs 75 60. Final orders on appeal 75 61A. Return of security for costs deposit 76

Part 7 — Hearings and trials

61. Outline of submissions etc. for certain hearings 77

Part 8 — Civil Judgments

Enforcement Act 2004 rules

62. Terms used 78


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63. Applications etc. that may be dealt with by a

registrar 78 64. Registrar’s decision, review of 78

Part 9 — Misuse of Drugs Act 1981

rules

65. Terms used 79 66. Applications, how they are to be made 79 67. Respondent’s rights and obligations 80 68. Court may order parties to be added 80 69. Deponents to attend for cross examination 80 70. Evidentiary matters 80

Part 10A — Prohibited Behaviour

Orders Act 2010 rules

71A. Terms used 82 71B. Application under Act s. 5, how to make 82 71C. Application under Act s. 21, how to make 84 71D. Responding to applications 84 71E. Corrected PBO, registrar’s duties as to 84

Part 10 — Miscellaneous

71F. Term used: court record 85 71. Access to records and things (registry) 85 72. Access to records and things (eCourts Portal of

Western Australia) 87

Part 11 — Transitional and savings

provisions

73. Terms used 89 74. Cases to which former rules apply 89 75. Outline of submissions for certain hearings 89

Schedule 1 — Forms

1AA. Memorandum of appearance (r. 22A) 90 1A. Affidavit (r. 23A) 92 1B. Originating summons (r. 23B) 94 1C. Notification of contact and service information (r.

23C) 97


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1. Entry for trial (r. 37) 99 2. Notice of default (entry for trial) (r. 38) 101 3. Outline of submissions (r. 45H, 61) 102 4A. Subpoena to attend to give evidence (r. 48AB) 103 4B. Subpoena notice — evidence (r. 48AB) 104 4C. Subpoena to produce documents (r. 48AB) 106 4D. Subpoena notice and declaration — documents or

things (r. 48AG) 108 4E. Subpoena notice and declaration — documents or

things (r. 48AG) 113 4. Prohibited Behaviour Orders Act 2010 s. 5

application (r. 71B) 118 5. Prohibited Behaviour Orders Act 2010 s. 21

application (r. 71C) 119 6. Appeal notice (r. 51(1)) 120 7. Service certificate (r. 51(7)) 123 8A. Appeal notice (WCIMA appeal) (r. 51(4A)) 124 8. Notice of respondent’s intention (r. 53) 127 9. Application in an appeal (r. 58A) 130 10. Consent notice (r. 58B) 131 11. Discontinuance notice (r. 58) 131

Notes

Compilation table 132 Other notes 133

Defined terms

As at 25 Mar 2020 Version 02-j0-00 page 1 Published on www.legislation.wa.gov.au

District Court of Western Australia Act 1969


Part 1 — Preliminary

1. Citation

These rules are the District Court Rules 2005.

2. Commencement

These rules come into operation on 30 May 2005.

3. Terms used

In these rules, unless the contrary intention appears —

address for service has a meaning affected by rule 17;

audio link has the meaning given to that term by the Evidence

Act 1906 section 120;

case means any proceeding in the Court involving or in

connection with the Court’s civil or appellate jurisdiction,

irrespective of how it was commenced;

department means the department of the Public Service that

principally assists the Minister in the administration of the Act;

ECMS means the electronic case management system for the

management of proceedings in Western Australian courts and

tribunals;

file a document, means to file it at the relevant registry together

with any fee required to be paid under the District Court (Fees)

Regulations 2002;

file and serve has the meaning given by rule 4;


Part 1 Preliminary

r. 3

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file electronically, in relation to a document, means file an

electronic version of the document under rule 20 by using the

ECMS;

Form, if followed by a number, means the form of that number

in Schedule 1;

health professional has the meaning given in the Civil Liability

Act 2002 section 5PA;

judge means a District Court judge;

lawyer means an Australian legal practitioner within the

meaning of that term in the Legal Profession Act 2008 section 3;

lay registrar means a registrar who is not a legally qualified

registrar;

legally qualified registrar means a registrar who is or has been

an Australian lawyer within the meaning of that term in the

Legal Profession Act 2008 section 3;

personal injuries action means an action in which a claim is

made in respect of —

(a) a person’s personal injuries (including any illness

suffered by him or her and any impairment of his or her

physical or mental condition); or

(b) a person’s death;

record means any thing or process —

(a) on or by which information is recorded or stored; or

(b) by means of which a meaning can be conveyed by any

means in a visible or recoverable form,

whether or not the use or assistance of some electronic,

electrical, mechanical, chemical or other device or process is

required to recover or convey the information or meaning;

registered user means a person who is authorised to file

documents electronically;

registry means a registry of the Court;

relevant registry to a case, means the registry of the Court

where the documents relating to the case are being held;


Preliminary Part 1

r. 3A


RSC means the Rules of the Supreme Court 1971;

rules of court means these rules and, where applicable,

the RSC;

serve means to serve in accordance with rule 21;

settle a case, includes to compromise the case;

video link has the meaning given to that term by the Evidence

Act 1906 section 120;

working day means a day other than a Saturday, a Sunday, or a

public holiday throughout the State.

[Rule 3 amended: Gazette 26 Jul 2013 p. 3409; 16 Mar 2018

p. 919; 7 Sep 2018 p. 3183; 31 Dec 2019 p. 4676.]

3A. Forms under Restraining Orders Act 1997

(1) For the purposes of the Restraining Orders Act 1997, the forms

set out in the Magistrates Court (Civil Proceedings) Rules 2005

Schedule 1, as in force on 25 November 2017, are prescribed

(with any necessary changes) in relation to the matters specified

in those forms.

(2) Where a form is in parts, then only those parts of the form that

are relevant, taking into account the part heading, need be used

for a particular copy of the form, or for a particular purpose.

[Rule 3A inserted: Gazette 2 Feb 2018 p. 317.]

4. File and serve document, meaning of

If these rules require a person to file and serve a document, then

unless these rules expressly provide otherwise, the person

must —

(a) file the document within any time limit for doing so; and

(b) after filing the document, serve it on the other party or

parties within 5 working days after the date on which it

is filed.


Part 1 Preliminary

r. 5


5. Application of these rules

(1) These rules apply to and in respect of every case other than a

case —

(a) that was commenced by writ before 30 May 2005; and

(b) in which an appearance was entered before

30 May 2005.

(2) If a case is one to which these rules do not apply by virtue of

subrule (1) —

(a) the District Court Rules 1996 2

apply to and in respect of

it, despite rule 72; and

(b) the Court may at any time order that these rules apply to

and in respect of it, despite subrule (1).

(3) If an order is made under subrule (2)(b) in respect of a case,

then, subject to the order, the District Court Rules 1996 2

cease

to apply to and in respect of the case.

(4) Despite subrules (1) and (2), Part 8 applies to and in respect of

any case in which there is a judgment, as that term is defined in

the Civil Judgments Enforcement Act 2004, that may be

enforced under that Act.

[Rule 5 inserted: Gazette 23 Dec 2005 p. 6271.]

6. Rules of the Supreme Court 1971, application of

(1) The RSC apply to and in respect of any case in the Court.

(2) For the purposes of subrule (1) —

(a) a reference in the RSC to “the Court” is to be taken as

being a reference to the District Court, unless the context

requires otherwise; and

(ba) a reference in the RSC to “case manager” is to be taken

as being a reference to a legally qualified registrar,

unless the context requires otherwise; and


Preliminary Part 1

r. 6


(bb) a reference in the RSC to a case management direction

under Order 4A is to be taken as being a reference to a

case management direction made under Part 4 of these

rules; and

(b) a reference in the RSC to the RSC (whether “these

Rules” or other words are used) is to be taken as

including a reference to these rules, unless the context

requires otherwise.

(3) If there is a conflict or inconsistency between these rules and

the RSC, these rules prevail.

[Rule 6 amended: Gazette 17 Jun 2011 p. 2159; 26 Jul 2013

p. 3409; 7 Sep 2018 p. 3183.]


Part 2 Administrative matters

Division 1 Registry matters

r. 7


Part 2 — Administrative matters

Division 1 — Registry matters

7. Electronic transmission of signatures and Court’s seal

(1) If the Court issues a document in an electronic form that bears a

facsimile of the Court’s seal, the sealed document as it appears

electronically, or as it appears when printed on paper, is to be

taken to have the same effect as if the Court’s seal had been

lawfully applied to it by hand by an officer of the Court.

(2) If the Court issues a document in an electronic form that bears

either a typed signature or a facsimile signature of a District

Court judge, registrar or other officer of the Court, the document

as it appears electronically, or as it appears when printed on

paper, is to be taken to have the same effect as if the signature

had been lawfully applied to it by the judge, registrar or other

officer of the Court.

[Rule 7 amended: Gazette 21 Jun 2016 p. 2201-2.]

Division 2 — Registrars’ jurisdiction

8. Registrars’ general jurisdiction

(1) A legally qualified registrar may deal with any proceedings that

a judge may deal with in chambers other than —

(a) proceedings involving a review of the taxation of costs;

and

(b) proceedings in relation to an originating summons that

raises for determination —

(i) a question of law; or

(ii) a question as to the construction of a statute or

document; or

(iii) a question arising out of an interest in land; or


Administrative matters Part 2

Registrars’ jurisdiction Division 2

r. 9


(iv) a question arising out of or connected with a

contract between a vendor and purchaser of land;

and

(c) proceedings claiming an injunction or other order under

the Supreme Court Act 1935 section 25(9); and

(d) proceedings that under rules of court are to be dealt with

by a judge; and

(e) proceedings that the Chief Judge directs are to be dealt

with by a judge.

(2) A lay registrar may do any of the following —

(a) conduct a case management hearing under Part 4 and

make any order that may be made at such a hearing;

(b) conduct a pre-trial conference under Part 4 and make

any order that may be made at such a conference;

(c) conduct a listing conference under Part 4 and make any

order that may be made at such a conference;

(d) during the conduct of a pre-trial conference or a listing

conference, settle, sign and seal an order under the

RSC Order 43 rule 16;

(e) at times other than during the conduct of a pre-trial

conference or a listing conference, settle, sign and seal

an order under the RSC Order 43 rule 16 if the solicitors

for the parties to proceedings have, under that rule, filed

a written consent to the making of the order.

[Rule 8 amended: Gazette 31 Jul 2007 p. 3808.]

9. Legally qualified registrar may be ordered to take account

etc.

(1) If in any proceedings the Court orders that an account be taken

or that an inquiry be made, it may order that it be done by a

legally qualified registrar.

(2) When or after making an order under subrule (1) the Court may

give orders or directions to assist the registrar.



Division 2 Registrars’ jurisdiction

r. 10


(3) While a registrar is taking an account or making an inquiry, a

party may apply at any time, without a summons, to have the

proceedings dealt with by a judge in which case the registrar

must adjourn the proceedings accordingly.


10. Registrar may be required to calculate interest etc.

(1) A judge may direct that the calculation of any interest, or the

apportionment of any fund, for the purposes of a judgment be

done and certified by a legally qualified registrar on the

judgment.

(2) The certificate of a registrar has effect according to its tenor

without any further order of the Court.


11. Registrars’ matters, when may be listed before judge

Proceedings that may be dealt with by a registrar are not to be

listed before a judge except —

(a) as provided for in rule 9(3); or

(b) on the reference of a registrar under rule 12; or

(c) on an appeal to a judge under rule 15; or

(d) in the case of a case management hearing, pre-trial

conference, or a listing conference, under Part 4, on the

order of a judge; or

(e) in the case of an application in an action or matter that is

made after the action or matter is listed for trial; or

(f) with leave from a judge.

12. Registrar may refer matter to judge

(1) A registrar may refer any proceedings before him or her to a

judge who may deal with them or refer them back with or

without directions.



Appeals from registrars Division 3

r. 13


(2) Pending the determination of the proceedings the registrar may

make an interim order.

13. Registrars’ powers to obtain evidence etc.

For the purpose of any proceedings that are to be dealt with by a

legally qualified registrar, the registrar may —

(a) summons a person to appear before him or her to give

evidence orally; and

(b) summons a person to appear before him or her to

produce a document or other thing; and

(c) examine a person, either orally or by written

interrogatories; and

(d) issue advertisements.


14. Registrars’ office taken to be judges’ chambers

(1) Any place where a legally qualified registrar sits is to be taken

to be a judge’s chambers for the purpose of any proceedings

which under rules of court may be dealt with by a registrar.

(2) Subject to rule 8, for the purpose of proceedings before a

registrar, a reference in rules of court to the Court includes a

reference to a registrar.

[Rule 14 amended: Gazette 31 Jul 2007 p. 3808-9.]

Division 3 — Appeals from registrars

15. Appeal lies from registrar to judge

(1) If a party is dissatisfied with a decision of a registrar the party

may appeal to a judge.

(2) The appeal must be commenced within 10 days after the date of

the decision or such longer period as a judge or legally qualified

registrar may allow.



Division 3 Appeals from registrars

r. 16


(3) The appeal must be commenced by filing and serving a notice

that —

(a) sets out the particulars of the registrar’s decision or that

part of it to which the appeal relates; and

(b) sets out the final orders that it is proposed the Court

should make on the appeal.

(4) There must be at least 7 clear days between service of the notice

and the date for the hearing of the appeal, unless otherwise

ordered.

(4a) On receiving notice from the Court of the date of the hearing of

the appeal, a party who appeals under this rule must serve notice

of the hearing date on each other party within 5 days after the

date on which the party received that notice from the Court.

(5) The appeal does not operate as a stay of proceedings unless a

judge or legally qualified registrar orders otherwise.

(6) The appeal is to be by way of a new hearing of the matter that

was before the registrar.

[Rule 15 amended: Gazette 31 Jul 2007 p. 3809; 18 Nov 2011

p. 4811.]

16. Directions hearing for appeals from registrars

(1) Not less than 7 days after an appeal is commenced, a legally

qualified registrar may summons the parties to the appeal to a

directions hearing before a legally qualified registrar.

(2) At the directions hearing the registrar may make any order or

direction that in his or her opinion will or may facilitate the

appeal being conducted efficiently, economically and

expeditiously, including —

(a) directions as to how the material necessary to determine

the appeal is to be presented; and

(b) directions setting the date, time and length of time for

the hearing of the appeal.



Appeals from registrars Division 3

r. 16


(3) At the directions hearing the registrar, with the consent of the

parties, may make an order that concludes the appeal.



Part 3 Filing and service of documents

Division 2 Filing documents by fax or by using

r. 19


Part 3 — Filing and service of documents

[Heading amended: Gazette 31 Jul 2007 p. 3809.]

[Division 1 (r. 17, 18) deleted: Gazette 31 Jul 2007 p. 3809.]

Division 2 — Filing documents by fax or by using ECMS

[Heading inserted: Gazette 16 Mar 2018 p. 919; amended:

Gazette 31 Dec 2019 p. 4676.]

19. Some documents may be filed by fax

(1) Subject to this rule and rule 20(1A), a document may be filed by

fax.

(2) A person wanting to file a document at a registry by fax must

use the published fax number for that registry.

(3) A document that, with any attachments and a cover page, is

more than 20 pages long, must not be filed by fax and any such

document received by a registry is to be taken not to have been

filed.

(4) A document that is sent by fax to a registry must have a cover

page stating —

(a) the sender’s name, postal address, document exchange

number (if any), telephone number and fax number; and

(b) the number of pages (including the cover page) being

sent by fax.

(5) A person that files a document by fax must —

(a) endorse the first page of the original document with —

(i) a statement that the document is the original of a

document sent by fax; and

(ii) the date and time the document was sent by fax;

and


Filing and service of documents Part 3

Filing documents by fax or by using Division 2

r. 20


(b) keep the endorsed original document and the fax

machine’s report evidencing the successful transmission

of the document; and

(c) if directed to do so by the Court, produce the items in

paragraph (b) to the Court.

(6) A document filed by fax at a registry is to be taken to have been

filed —

(a) if the whole document is received before 4.00 p.m. on a

day when the registry is open for business, on that day;

(b) otherwise, on the next day when the registry is open for

business.

(7) A person who files a document by fax must have the original

paper version of the document with him or her at any conference

or hearing in the course of the case concerned.

(8) The Court may at any time, on the application of a party or on

its own initiative, order a person who has filed a document by

fax to file the paper version of the document.

[Rule 19 amended: Gazette 16 Mar 2018 p. 919.]

20. Some documents may be filed by using ECMS

(1) Subject to the requirements of the ECMS and this rule, a person

who is a registered user may file a document electronically by

filing an electronic version of it using the ECMS.

(1A) If a document is to be filed by a lawyer on behalf of a client —

(a) the lawyer must be a registered user; and

(b) the document must be filed electronically unless —

(i) the ECMS is unavailable for use or does not

permit the document to be presented for filing

electronically; or

(ii) the rules of court state that the document cannot

be filed electronically; or



Division 2 Filing documents by fax or by using

r. 20


(iii) the document is filed for the purposes of an

urgent application made outside office hours; or

(iv) the document is filed by a lawyer given

permission under subrule (1B) to file it otherwise

than by using the ECMS.

(1B) A registrar, for any good reason and without a formal

application or request, may permit a lawyer to file a document

otherwise than by using the ECMS.

(1C) If a document is not required to be filed electronically, whether

by the operation of subrule (1B) or otherwise, the document

may be presented to the relevant registry for filing —

(a) by emailing it to the published email address for that

registry; or

(b) by delivering it; or

(c) by posting it; or

(d) subject to rule 19, by faxing it.

(2) If the rules of court require a document to be signed by a person

who is not, or who is not acting on behalf of, the person filing it,

the document cannot be filed electronically unless it is an

affidavit.

(3) If the rules of court require a document, before it is filed, to be

signed by or on behalf of the person filing it and the document

is being filed electronically —

(a) the document need not be signed by that person; and

(b) the person filing the document electronically must

ensure that the electronic version of the document,

instead of showing a signature at any place where a

signature is required, states the name of the person

whose signature is required at the place.



Filing documents by fax or by using Division 2

r. 20


(4) A person who files an affidavit electronically must either file an

electronic version of it that includes the signatures on it or —

(a) file an electronic version of it that does not include the

signatures on it; and

(b) ensure that the electronic version, instead of showing a

signature at any place where a signature appears in the

paper version, states the name of the person whose

signature it is; and

(c) also file an undertaking that the person —

(i) has possession of the paper version signed

according to law; and

(ii) will retain the paper version subject to any order

of the Court.

(5) A document filed electronically is taken to have been filed on

the day and at the time recorded by the ECMS.

(6) A document that is presented to the Court for filing

electronically but not in accordance with the requirements of the

ECMS and this rule is to be taken —

(a) not to have been filed; and

(b) not to be part of the Court’s record.

(7A) If a party files a document electronically but does so in error, the

Court may, with the consent of the party, remove the document

from the Court record.

(7B) The RSC Order 67 applies, subject to subrule (7C).

(7C) A reference in the RSC Order 67 rule 5(1) to a registrar refusing

to file a document is to be taken as including a reference to the

Court removing from the Court record a document filed

electronically.

(7) A person who files a document electronically must have the

original paper version of the document with him or her at any

conference or hearing in the course of the case concerned.



Division 3 Serving documents

r. 21


(8) The Court may at any time, on the application of a party or on

its own initiative, order a person who has filed a document

electronically to file the paper version of the document.

[Rule 20 amended: Gazette 31 Dec 2013 p. 6549; 16 Mar 2018

p. 919-20; 31 Dec 2019 p. 4676.]

Division 3 — Serving documents

21. Service of documents

[(1) deleted]

(2) A document cannot be served by email under the RSC Order 72

if under rule 20(2) it cannot be filed electronically.

(3) Rule 20(3) and (4), with any necessary changes, apply to a

document being served by email in the same way as they apply

to a document being filed electronically.

[(4), (5) deleted]

(6) Subject to the RSC Order 9, this rule does not prevent a person

from consenting to being served in a manner other than in

accordance with the rules of court.

[Rule 21 amended: Gazette 23 Dec 2005 p. 6271; 31 Jul 2007

p. 3809; 31 Dec 2013 p. 6550.]

21A. Service of documents by Court

(1) The service of a document on a person by the Court must be by

one of the methods in the Table to this rule.

(2) A document that is served by the Court by a method in the

Table to this rule is to be taken to have been served at the time

stated opposite the method in the Table, unless the contrary is

proved.



Miscellaneous Division 4

r. 22A


Table

No. How a document may be

served on a person

When the document is to be

taken to have been served

1. By posting it to the person’s

address.

When it would be delivered to

the address in the ordinary

course of post.

2. By putting it in a pigeonhole

at the Court that is used by

the person’s lawyer.

On the next working day after it

is put in the pigeonhole.

3. If the person has provided a

fax number under the

RSC Order 71A, by sending it

by fax to that number.

If the fax is sent before 4.00 p.m.

on a working day, on that day.

Otherwise, on the next working

day after the fax is sent.

4. If the person has provided an

email address under the

RSC Order 71A, by emailing

it (whether or not as an

attachment) to that address.

If the email is sent before

4.00 p.m. on a working day, on

that day. Otherwise, on the next

working day after the email is

sent.

5. If the person has provided an

email address under the

RSC Order 71A, by putting it

in an electronic mailbox

maintained by the Court and

sending the person an email

at that address that says it is

in the mailbox.

On the next working day after

the email is sent.

[Rule 21A inserted: Gazette 23 Dec 2005 p. 6271-2; amended:

Gazette 31 Jul 2007 p. 3809.]

Division 4 — Miscellaneous

22A. RSC Order 9A rule 2 and Order 12 rule 2 modified: form of

memorandum of appearance

(1) The RSC Order 9A rule 2 and Order 12 rule 2 apply, subject to

this rule.

(2) A memorandum of appearance filed in the Court must be in the

form of Form 1AA.



Division 4 Miscellaneous

r. 22C


(3) Notice of an interested non-party may be made on the same

form.

[Rule 22A inserted: Gazette 31 Dec 2013 p. 6550.]

[22B. Deleted: Gazette 7 Sep 2018 p. 3184.]

22C. Party may not be required to state geographical address

(1) The Court may, on the application of the party or on its own

initiative, order that a party is not required to state his or her

geographical address in a document required to be filed or

served under the RSC or these rules.

(2) The Court must not make an order under subrule (1) in relation

to a party unless the party —

(a) is an individual; and

(b) has provided his or her geographical address to the

Court on a confidential basis; and

(c) is represented by a practitioner.

(3) The Court may, on the application of any party or on its own

initiative —

(a) amend or cancel an order made under subrule (1); or

(b) order that the party’s geographical address be given to

another party.

[Rule 22C inserted: Gazette 26 Jul 2013 p. 3410-11; amended:

Gazette 31 Dec 2013 p. 6550.]

22. Summonses for matters in chambers

(1) Before filing a summons to be dealt with in chambers the parties

to the summons must, in good faith, attempt to resolve as many

of the issues giving rise to the summons as possible.



Miscellaneous Division 4

r. 23A


(2) A person filing a summons to be dealt with in chambers must

include in the summons or file with the summons —

(a) a certificate that the parties to the summons have

conferred about the issues giving rise to the summons

and have not resolved them; or

(b) a certificate that the parties to the summons have not

conferred about the issues giving rise to the summons

and the reasons why they have not conferred.


23A. Affidavits, form of

An affidavit filed in the Court may be in the form of Form 1A.

[Rule 23A inserted: Gazette 17 Jun 2011 p. 2153.]

23B. RSC Order 58 rule 14 modified: form of originating

summons

(1) The RSC Order 58 rule 14 applies, subject to this rule.

(2) An originating summons filed in the Court may be in the form

of Form 1B.

(3) The respondent to an originating summons must file a

Form 1AA (Memorandum of appearance) in relation to the

summons on or before the hearing date specified on the

summons.

(4) The respondent must serve the Form 1AA as soon as practicable

after filing it.

[Rule 23B inserted: Gazette 31 Dec 2013 p. 6550.]

23C. Enforcement of order under another Act giving jurisdiction

(1) This rule applies to an order that may, under another written

law —

(a) be filed with the Court; and

(b) be enforced as if it were an order of the Court.



Division 4 Miscellaneous

r. 23C


(2) A party filing the order must also file a Form 1C (Notification

of contact and service information) together with the order.

(3) If a party against whom the order is made makes an

interlocutory application in relation to the order, that party must

file a Form 1C (Notification of contact and service information)

together with the application.

(4) The party referred to in subrule (3) must serve the Form 1C as

soon as practicable after filing it.

[Rule 23C inserted: Gazette 31 Dec 2013 p. 6551.]


Case management Part 4

Preliminary Division 1

r. 23


Part 4 — Case management

Division 1 — Preliminary

23. Terms used

In this Part, unless the contrary intention appears —

case management direction is defined by rule 24;

enforcement order is defined by rule 25;

mediator means a legally qualified registrar, or another person,

agreed by the parties and approved by the Court.

[Rule 23 amended: Gazette 31 Jul 2007 p. 3810; 31 Dec 2013

p. 6551.]

24. Case management direction, meaning of

(1) A case management direction is any procedural direction that in

the Court’s opinion it is just to make in a case to facilitate the

case being conducted and concluded efficiently, economically

and expeditiously.

(2) Without limiting subrule (1), a case management direction

may —

(a) dispense with all or any or any further pleadings;

(b) direct that specified pleadings be filed;

(c) dispense with any interlocutory proceedings;

(d) as to the hearing of any interlocutory application —

(i) direct the parties to confer in order to identify the

issues between them and resolve as many as

possible before the hearing and to identify the

issues to be heard;

(ii) direct the parties to file and exchange

memoranda before the hearing in order to

identify the issues to be heard;


Part 4 Case management

Division 1 Preliminary

r. 24


(iii) give directions as to the use of videotapes, films,

computers and other technology at the hearing;

(iv) give directions for the speedier and more

effective recording of evidence at the hearing;

(e) direct some or all of the parties to confer on a “without

prejudice” basis in order to settle the case or, failing

settlement, to resolve as many of the issues between

them as possible and to identify the issues to be tried

and, as to the conference —

(i) direct that it be conducted by a mediator; but not,

unless the parties consent, a mediator who is not

a registrar and whom a party would become

liable to remunerate;

(ii) give directions for the purpose of rule 35(7);

(iii) if good cause is shown, direct that it operates as a

stay of proceedings;

(iv) give any other directions that are necessary;

(f) direct that experts, whose reports have been exchanged,

confer on a “without prejudice” basis in order to identify

the differences between them and to resolve as many as

possible;

(g) as to —

(i) the hearing of any interlocutory application; or

(ii) any conference directed under paragraph (d)(i),

(e) or (f),

direct that it be conducted, and any evidence in relation

to it be provided, by fax or email or by an audio link or a

video link;

(ga) direct that a party file and serve a concise statement of

the issues of fact or law that the party contends will need

to be determined at trial;

(gb) direct that a party file and serve a chronology of events

relevant to the party’s case;



Preliminary Division 1

r. 24


(gc) dispense with a requirement to file and serve a document

under Part 4A, or alter the day on or by which a party

must comply with such a requirement;

(h) direct the mode by which particular facts may be proved

at trial;

(i) direct that evidence of any particular fact, to be specified

in the direction, shall be given at the trial by statement

on oath of information and belief, or by production of

documents or entries in books or by copies of documents

or entries or otherwise as the Court may direct;

(j) direct a party to serve on the other parties, at such times

as shall be directed, a signed written statement of the

proposed evidence in chief of each witness to be called

by that party;

(k) direct that a signed written statement referred to in

paragraph (j) or any part of it stand as the evidence in

chief of the witness;

[(l), (m) deleted]

(n) direct a lawyer for a party to give the party written

notice of any or all of the legal costs and disbursements

referred to in rule 36(1);

(o) direct a party or the lawyer for a party to attend certain

proceedings specified in the direction;

(p) in special circumstances direct that an application by a

party made under this Division operate as a stay of

proceedings;

(q) in exceptional circumstances or if not to do so would

frustrate the appeal, direct that an appeal against a

decision made under this Part operate as a stay of

proceedings;

(r) direct that an application for an adjournment of any

proceeding be supported by affidavits of specified

people;



Division 2 Case management generally

r. 25


(s) give directions to assist the convenience of the parties or

witnesses;

(t) give directions as to the manner in which the parties

shall defray the costs of giving effect to any case

management direction;

(u) direct that a specified case management direction be

complied with by a set date.

(3) A case management direction shall not order the attachment or

committal of a person.

(4) A case management direction is not enforceable by a writ of

attachment or an order of committal.


25. Enforcement order, meaning of

An enforcement order is —

(a) an order as to the payment of costs;

(b) an order as to the payment of costs of the parties on an

indemnity basis, to be fixed in a manner specified in the

order, and payable within 14 days after the order;

(c) a self-executing order for judgment, striking out

pleadings, or otherwise;

(d) an order under the RSC Order 66 rule 5.

Division 2 — Case management generally

26. Court may make case management directions etc.

At any time in a case the Court, on its own initiative after

notifying the parties, or when hearing a summons for directions

or any other application in a case, may review the progress of

the case and may make any order that may be made under

rule 32(2).



Case management of cases commenced by writ Division 3

r. 27


27. Case management hearing, registrar may hold

(1) At any time before the trial or the hearing of a case, a registrar

may summons the parties to a case management hearing.

(2) Rules 32 to 35 apply to and in respect of the case management

hearing.


Division 3 — Case management of cases commenced by writ

Subdivision 1 — Preliminary

[Heading inserted: Gazette 31 Jul 2007 p. 3811.]

28. Application

This Division applies only to a case that is an action

commenced by writ.

29. Various RSC provisions do not apply

These provisions of the RSC do not apply to a case —

Order 4A

Order 33

Order 59 rule 9

Order 60A rule 2

[Rule 29 inserted: Gazette 17 Jun 2011 p. 2159; amended:

Gazette 7 Sep 2018 p. 3184.]

[30. Deleted: Gazette 26 Jul 2013 p. 3411.]

31. Case management hearing, holding of

(1) In this rule —

appearance means a memorandum of appearance.

(2) This rule does not limit rule 27.



Division 3 Case management of cases commenced by writ

r. 32


(3) When the first appearance is filed in a case, a registrar may

summons the parties to the case to attend a case management

hearing before a registrar.

(4) The date for the case management hearing must be at least

14 days after the date the summons is issued.

(5) If after the first appearance is filed and before the date for the

case management hearing another party files an appearance, the

registrar must summons the party to attend the case

management hearing for which a summons has been issued

under subrule (3), despite subrule (4).

(6) The case management hearing may be held even if, at the time

of the hearing, not all parties to the case have been served with

the writ or have filed appearances.


32. Case management hearing, conduct of

(1) At a case management hearing a registrar must review the

documents on the Court file and inquire into these matters —

(a) the complexity of the case;

(b) the need for interlocutory proceedings;

[(c) deleted]

(d) whether rule 38(1) should not apply to the case;

(e) the readiness of the parties for trial.

(2) At a case management hearing, either on the oral application of

a party or, after notifying the parties, on the registrar’s own

initiative, a registrar may —

[(a) deleted]

(b) order that any of the rules in this Division do not apply

to the case;

(c) make, amend or cancel any interlocutory order;

(d) make, amend or cancel any case management direction;




r. 33


(e) make, amend or cancel any enforcement order;

(f) order that the case be managed by a judge.

(3) A registrar may adjourn the case management hearing from time

to time.


33. Case management directions etc. may be made in other

proceedings

(1) Without limiting rule 32, a direction or order referred to in

rule 32(2) may be made, amended or cancelled —

(a) at any time while a case management hearing is

adjourned, or after a case management hearing, on the

application of a party made by summons with a

supporting affidavit; or

(b) at the hearing of a summons for —

(i) an interlocutory order; or

(ii) third party directions issued under the

RSC Order 19 rule 4.

(2) An application made under subrule (1)(a) must specify any

direction or order referred to in rule 32(2) that the party wants.

34. Duties of parties at case management hearing etc.

(1) At a case management hearing or at the hearing of an

application made under rule 33(1)(a), the parties and their

lawyers must give any information and produce any documents

that the Court reasonably requires other than information or

documents that are privileged.

(2) As far as is practicable a party must give another party at least

2 clear days’ notice of any direction or order referred to in

rule 32(2) that the party wants made, whether at a case

management hearing or otherwise, and that is not stated in a

written application.




r. 35


Subdivision 2 — Mediations


35. Mediations

(1) This rule applies if the Court makes a case management

direction that directs any parties to confer with a mediator.

(2) The direction does not operate as a stay of proceedings unless

the Court orders otherwise.

(3) Unless the Court has specified a time and place for the

conference, the parties must take any steps necessary and obey

any relevant case management directions to ensure that it takes

place without delay.

(4) A party must attend the conference in person or, if the party is a

body corporate, by an agent who is authorised by the body to

conduct settlement negotiations and to settle the case.

(5) Each party’s costs of and incidental to the conference shall be

the party’s costs in the cause, unless the Court orders, or the

parties agree, otherwise.

(6) The remuneration and expenses of a mediator who is not a

registrar are to be paid by the parties in equal shares, unless the

Court orders, or the parties agree, otherwise.

(7) Within 2 weeks after the conclusion of the conference, the party

ordered by the Court to do so must file a report signed by or on

behalf of the parties concerned —

(a) confirming that the conference took place as directed;

and

(b) recording the substance of any resolution or narrowing

of the differences between the parties achieved as a

result of the conference.




r. 35AA


(8) The mediator —

(a) must not, unless the parties agree, report to the Court

about the conference;

(b) whether or not the parties agree, may report to the Court

any failure by a party to cooperate in the conference.

(9) A report made under subrule (8)(b) must not be disclosed to the

trial judge except for the purposes of determining any question

as to costs or as to the remuneration and expenses of a mediator.

(10) Rule 41, other than subrule (3), applies to the conference as if

any reference in it to a pre-trial conference were a reference to

the conference.

[Rule 35 amended: Gazette 23 Dec 2005 p. 6272.]

35AA. Settlement at mediations

(1) At the conference the parties must, in good faith, attempt to

settle the case or, failing settlement, resolve as many of the

issues between them as possible and identify the issues to be

tried.

(2) Evidence of anything said or any admission made in the course

of the conference is not admissible at the trial of the case.

(3) Subrule (2) does not apply —

(a) to the hearing of an application for costs arising out of

the conference; or

(b) to anything said or any admission made that all parties at

the conference, in an agreement recorded in writing by

the mediator, agree is admissible at the trial of the case.

[Rule 35AA inserted: Gazette 31 Dec 2013 p. 6551.]

35A. Mediation may serve as pre-trial conference

(1) If, pursuant to a case management direction, the parties to a case

have conferred with a mediator, the Court may order that there

is not to be a pre-trial conference in the case.




r. 36


(2) An order under subrule (1) may be made —

(a) at the conference with the mediator, if the mediator is a

legally qualified registrar;

(b) after the conference with the mediator;

(c) before or after the case is entered for trial;

(d) even if notice of a pre-trial conference has been given

under rule 39;

(e) on the application of a party or, after notifying the

parties, on the Court’s own initiative.

(3) If the Court makes an order under subrule (1), rules 40(5), (6)

and (7), 41 and 42 apply as if the conference with the mediator

had occurred at, or as ordered in, a pre-trial conference.

[Rule 35A inserted: Gazette 23 Dec 2005 p. 6272-3; amended:

Gazette 31 Jul 2007 p. 3811.]

Subdivision 3 — Entry for trial, and ancillary matters


36. Legal costs, lawyer to notify client of

(1) Unless otherwise ordered, a lawyer for a party to a case must not

enter the case for trial unless the lawyer has given the party

written notice of —

(a) the approximate legal costs and disbursements of the

party up to and including giving the notice;

(b) the estimated future legal costs and disbursements of the

party up to but not including the trial;

(c) the estimated length of the trial and the legal costs and

disbursements associated with it;

(d) the estimated legal costs and disbursements that the

party would have to pay to another party if the party

were to lose the case.




r. 37


(2) Within 14 days after the date on which a party is served with a

Form 1 (Entry for trial), the lawyer for the party must give the

party written notice of the legal costs and disbursements referred

to in subrule (1).

37. Entering a case for trial

(1) Unless otherwise ordered, the plaintiff must enter the case for

trial within 120 days after the date on which a defence (or if

there is more than one defendant, the first defence) is filed.

(2) Subrule (1) does not affect Part 5A.

(3) To enter a case for trial the plaintiff must file and serve a

Form 1 (Entry for trial) which must state the dates, within

40 days after the date of the form, when the parties are not

available to attend a pre-trial conference.

(4) For the purposes of completing Form 1 —

(a) the plaintiff, at least 14 days before the date on which

the plaintiff intends to enter the case for trial, must ask

each other party to tell the plaintiff on which dates,

within 40 days after that date, the party will not be

available to attend a pre-trial conference; and

(b) a party that does not advise the plaintiff within 7 days

after the plaintiff’s request of the dates on which that

party will not be available to attend a pre-trial

conference is to be taken to be available on any date.

(5) The Court may, in a particular case, direct that a form other than

Form 1 be used to enter the case for trial.

[Rule 37 amended: Gazette 31 Jul 2007 p. 3811; 26 Jul 2013

p. 3411; 31 Dec 2013 p. 6552; 7 Sep 2018 p. 3184.]

38. Plaintiff failing to enter case for trial, consequences

(1) If the plaintiff does not enter the case for trial in accordance

with rule 37(1), the relevant registry must send each party a

Form 2 (Notice of default (entry for trial)).




r. 38A


(2) After receiving a Form 2 —

(a) the plaintiff must, on or before the date specified in the

form (which must be at least 14 days after the date of the

form), enter the case for trial; and

(b) a party, other than the plaintiff, may enter the case for

trial even if the case is taken to be inactive under rule 44

or 44A.

(3) Rule 37(3), with any necessary changes, applies if a party other

than the plaintiff enters the case for trial.

(4) If a party other than the plaintiff enters the case for trial, then,

for the purposes of completing Form 1, all other parties

(including the plaintiff) are to be taken to be available to attend

a pre-trial conference on any date unless notice to the contrary is

filed prior to when the date of the pre-trial conference is set.

(5) If under subrule (2) a case is entered for trial at a time when, by

virtue of the Form 2 sent to the parties and rule 44 the case is

inactive, the case ceases to be inactive.

(6) Subrules (2) and (5) do not prevent the plaintiff from entering

the case for trial notwithstanding that the case is inactive under

rule 44.

[Rule 38 amended: Gazette 17 Jun 2011 p. 2159; 26 Jul 2013

p. 3411-12.]

38A. After entry for trial, no interlocutory application without

leave

(1) After a case is entered for trial, no party, without the Court’s

leave, can apply —

(a) to file further pleadings; or

(b) to join or substitute parties; or

(c) for particulars, interrogatories, discovery, inspection, or

the disclosure or non-disclosure of expert evidence; or




r. 38B


(d) to have evidence taken before a special examiner or on

commission.

(2) Subrule (1) does not limit the power of the judge at the trial to

make orders for or in relation to any of the matters referred to in

that subrule.

[Rule 38A inserted: Gazette 7 Sep 2018 p. 3184.]

38B. Countermanding entry for trial

(1) Within 14 days after the date on which a party enters a case for

trial under rule 37 or 38, any other party may apply for an order

countermanding the entry for trial.

(2) An application under subrule (1) must be made by filing and

serving a summons and a supporting affidavit on the party who

entered the case for trial at least 2 clear days before hearing of

the summons.

(3) If any party to the summons is represented by a lawyer, the

lawyer, or another lawyer who is conversant with the case, must

personally attend the hearing of the summons and must not send

a clerk to attend.

(4) On an application made under this rule, the Court —

(a) may countermand the entry;

(b) may allow the entry to stand;

(c) may direct that the entry take effect upon the happening

of certain events or on a date set by the Court;

(d) may make any other order or give any other direction it

thinks proper.

(5) The costs of an application made under this rule are costs in the

cause, unless the Court orders otherwise.




r. 39


(6) A party who does not make a successful application under

subrule (1) is taken to be ready for trial.

[Rule 38B inserted: Gazette 7 Sep 2018 p. 3184-5.]

Subdivision 4 — Pre-trial conference, and ancillary matters


39. Pre-trial conference, preliminary matters

(1) When a case is entered for trial the relevant registry must give

each party notice of the date, time and place of the pre-trial

conference, unless an order has been made under rule 35A.

(2) A pre-trial conference must be held before a registrar unless a

judge or legally qualified registrar has ordered otherwise.

[Rule 39 amended: Gazette 23 Dec 2005 p. 6273; 31 Jul 2007

p. 3811.]

40. Pre-trial conference

(1) Unless otherwise ordered, a party must attend a pre-trial

conference in person or, if the party is a body corporate, by an

agent who is authorised by the body to conduct settlement

negotiations and to settle the case.

(2) If at a pre-trial conference the presiding officer is satisfied that a

party is not ready for trial, the officer may adjourn the

conference and make, amend or cancel any direction or order

referred to in rule 32(2).

(3) At a pre-trial conference the parties must, in good faith, attempt

to settle the case or, failing settlement, to resolve as many of the

issues between them as possible and to identify the issues to be

tried.

(4) At a pre-trial conference the presiding officer may either —

(a) mediate between the parties; or

(b) order the parties to attend before a mediator, arbitrator or

other person who provides alternative dispute resolution




r. 40


services (but not, unless the parties consent, a person

whom a party would become liable to remunerate),

in order to settle the case or, failing settlement, to resolve as

many of the issues between them as possible and to identify the

issues to be tried.

(4a) The presiding officer need not act under subrule (4) if, pursuant

to a case management direction, the parties have conferred with

a mediator.

(5) If the mediation referred to in subrule (4) or (4a) has not

resulted in the settlement of the case, the presiding officer must

either —

(a) order the parties to attend a listing conference and make

any orders under rule 42 that are needed; or

(b) list the case for trial if satisfied about the matters in

subrule (6).

(6) The presiding officer must not list a case for trial under

subrule (5) unless satisfied —

(a) that the lawyers who will appear at trial for the parties

have all been fully briefed and that all parties have been

advised by their lawyers about their prospects at trial;

and

(b) that all parties have made reasonable efforts to agree

on —

(i) facts that are not the subject of real controversy;

(ii) the tender of any expert’s report without the need

for the expert to be called;

and

(c) that a reliable estimate has been made as to the probable

length of the trial; and

(d) that no useful purpose would be served by ordering the

parties to attend a listing conference and making any

order under rule 42.




r. 41


(7) At a pre-trial conference the presiding officer may make orders

as to costs including, if a case is settled, orders as to costs

reserved and the costs of interrogatories.

(8) The presiding officer may adjourn a pre-trial conference from

time to time.


41. Pre-trial conference, ancillary matters

(1) Evidence of anything said or any admission made in the course

of a pre-trial conference is not admissible at the trial of the case.

(2) Subrule (1) does not apply —

(a) to the hearing of an application for costs arising out of a

pre-trial conference; or

(b) to anything said or any admission made that all parties at

the conference, in an agreement recorded in writing by

the presiding officer, agree is admissible at the trial.

(3) If the parties at a pre-trial conference agree to settle the case,

then unless otherwise ordered —

(a) each party and the party’s lawyer on the record must

sign and file and serve a written consent to the making

of an order giving effect to the settlement; and

(b) judgment is to be entered, or final orders are to be made,

at the pre-trial conference unless a judge’s approval of

the judgment or orders is required and a registrar is

presiding.

(4) The presiding officer, whether or not the parties agree, may

report to the Court any failure by a party to cooperate in the

pre-trial conference.


p. 6552.]




r. 42A


Subdivision 5A — Settlement of cases

[Heading inserted: Gazette 31 Dec 2013 p. 6552.]

42A. Offers of compromise

(1) The RSC Order 24A applies, subject to subrule (2).

(2) The RSC Order 24A rule 10(4) does not apply to a case.

(3) Subrule (4) applies if —

(a) an offer is made by a plaintiff; and

(b) the offer is not accepted by the defendant; and

(c) the plaintiff obtains judgment on the claim to which the

offer relates; and

(d) the judgment is no less favourable to the plaintiff than

the terms of the offer.

(4) Unless the Court otherwise orders, the plaintiff is entitled to an

order against the defendant for —

(a) the plaintiff’s costs in respect of the claim from the date

on which the offer was made, taxed as between a law

practice and its client; and

(b) the plaintiff’s costs incurred before that date, taxed on a

party and party basis.





r. 42


Subdivision 5 — Listing conference


42. Listing conference, orders for purpose of

(1) If under rule 40(5)(a) the presiding officer orders the parties to

attend a listing conference, then, either at the request of the

parties or, after notifying the parties, on the officer’s own

initiative, the officer may —

[(a), (b) deleted]

(c) order the parties to exchange, within such period as the

officer orders, any medical report, expert medical

evidence or other expert evidence that has not already

been exchanged under Part 5;

(d) make, amend or cancel any case management direction;

(e) make, amend or cancel any enforcement order;

(f) order that the case be managed by a judge.

[(2) deleted]

[Rule 42 amended: Gazette 31 Jul 2007 p. 3812; 7 Sep 2018

p. 3185.]

43. Listing conference

(1) A listing conference must be held before a registrar unless a

registrar or a judge has ordered otherwise.

(2) A listing conference must be attended by the lawyers who will

appear at trial for the parties unless subrule (3) applies.

(3) The lawyer who will appear at trial for a party need not attend a

listing conference if his or her instructing lawyer attends and

tenders the other’s certificate as to —

(a) the estimated length of the trial; and

(b) the number of witnesses that the party intends to call;

and




r. 43


(c) whether there are any special circumstances affecting

the date or time when any particular witness can be

called; and

(d) whether any particular witness will be attending from a

long distance or from outside the State; and

(e) whether an interpreter will be needed; and

(f) whether an audio link or a video link will be needed; and

(g) whether the use of any technology would allow the trial

to be conducted more efficiently, economically or

expeditiously; and

(h) whether there is any matter known to the lawyer that is

likely to interfere with the trial being conducted

efficiently, economically and expeditiously; and

(i) the fact that the parties have made reasonable efforts to

reach agreement on —

(i) facts that are not the subject of real controversy;

and

(ii) the tender of experts’ reports (if any) without the

need for the experts to be called.

(3a) The lawyer who will appear at trial for a party must certify

that he or she has reviewed the pleadings and is satisfied that

they adequately define all the issues of fact or law that the party

contends will need to be determined at trial, and the document

containing this certification must be tendered at the listing

conference.

(4) At a listing conference the presiding officer must list the case

for trial only if any order or direction previously made has been

complied with or, if not, if appropriate orders in default have

been made.

(5) At a listing conference the presiding officer may make orders as

to costs including, if a case is settled, orders as to costs reserved

and the costs of interrogatories.




r. 43A


(6) The presiding officer may adjourn a listing conference from

time to time.


Subdivision 6 — Inactive cases


43A. Term used: Inactive Cases List

In this Subdivision —

Inactive Cases List means a list of inactive cases kept by the

Court under rule 44D.


44. Effect of non-compliance with Notice of Default

If a plaintiff does not comply with rule 38(2)(a), the case is

taken to be inactive.

[Rule 44 inserted: Gazette 26 Jul 2013 p. 3412.]

44A. Cases inactive for 12 months deemed inactive

If no document is filed in a case for 12 months by any party to

the case, the case is taken to be inactive unless the Court orders

otherwise.


44B. Registrar may issue summons to show cause

(1) A registrar may at any time summons the parties to a case to

attend a hearing before a registrar to show cause why the case

should not be put on the Inactive Cases List.

(2) The hearing date for the summons must be at least 7 days after

the date on which it is issued.




r. 44C


(3) The issue of the summons does not prevent any party to the case

from filing any document in the case.

(4) At the hearing the registrar may order that the case be put on the

Inactive Cases List if not satisfied that the case is being

conducted in a timely way, having regard to the requirements of

these rules and the circumstances of the case.

(5) An order may be made under subrule (4) in the absence of any

party.

[Rule 44B inserted: Gazette 17 Jun 2011 p. 2160.]

44C. Springing order that case be put on Inactive Cases List

(1) A judge or registrar making an interlocutory order or case

management direction in a case may include an order that unless

the interlocutory order or direction is complied with by a date

stated in the order or direction, the case is taken to be inactive.

(2) Unless countermanded by a judge or registrar before it has

effect, the order has effect according to its terms.

[Rule 44C inserted: Gazette 17 Jun 2011 p. 2160.]

44D. Parties to be notified of case being on Inactive Cases List

and to advise clients

(1) When a case is taken to be inactive under rule 44 or 44A, or an

order is made under rule 44B(4), or an order made under

rule 44C(1) takes effect, the Principal Registrar must —

(a) put the case on the Inactive Cases List; and

(b) give all parties to the case written notice that the case is

on the Inactive Cases List and of the effect of rules 44E

and 44G.

(2) If under subrule (1) a practitioner for a party is notified, the

practitioner must, as soon as practicable, notify the party of —

(a) the fact that the case is on the Inactive Cases List and

why; and




r. 44E


(b) the effect of rules 44E and 44G.

[Rule 44D inserted: Gazette 17 Jun 2011 p. 2160-1; amended:

Gazette 26 Jul 2013 p. 3413.]

44E. Consequences of case being on Inactive Cases List

If a case is on the Inactive Cases List, only these documents can

be filed in the case —

(aa) a Form 1AA (Memorandum of appearance);

(a) a Form 1 (Entry for trial);

(b) a consent order finalising the case;

(c) a summons for an order under rule 44F(3);

(d) a summons for an order dismissing the case for want of

prosecution;

(e) any document that relates to a document listed above.

[Rule 44E inserted: Gazette 17 Jun 2011 p. 2161; amended:

Gazette 26 Jul 2013 p. 3413.]

44F. Removing cases from Inactive Cases List

(1) If a Form 1 (Entry for trial), or a consent order finalising the

case, is filed in a case on the Inactive Cases List, the case is

taken to have been taken off the list.

(2) Any party to a case on the Inactive Cases List may apply to the

Court for an order that the case be taken off the Inactive Cases

List.

(3) The Court may order a case be taken off the Inactive Cases List

if satisfied the case will be conducted in a timely way or for any

other good reason.

(4) An order that a case be taken off the Inactive Cases List may

include any conditions necessary to ensure the case is conducted

in a timely way.

[Rule 44F inserted: Gazette 17 Jun 2011 p. 2161.]




r. 44G


44G. Certain inactive cases taken to have been dismissed

(1) A case that is on the Inactive Cases List for 6 continuous

months is taken to have been dismissed for want of prosecution.

(2) If a case is dismissed under subrule (1), the Principal Registrar

must give all parties to the case written notice of the fact.

(3) If under subrule (2) a practitioner for a party is notified, the

practitioner must, as soon as practicable, send a copy of the

notice to the party.

(4) If a case is dismissed under subrule (1), any party to it may

apply to the Court for, and the Court may make, any order

needed as a consequence of the dismissal.

(5) The Court may, in exceptional circumstances and on such terms

as it thinks just, set aside the dismissal of a case under

subrule (1).

(6) For the purposes of subrule (5) it does not matter that the case

was dismissed before the commencement of that subrule.

[Rule 44G inserted: Gazette 17 Jun 2011 p. 2161-2; amended:

Gazette 31 Dec 2013 p. 6552-3.]

[45. Deleted: Gazette 17 Jun 2011 p. 2162.]


Part 4A Documents to be filed, served or delivered before trial

r. 45A


Part 4A — Documents to be filed, served or delivered

before trial


45A. Application

This Part applies only to a case that is an action commenced by

writ.

[Rule 45A inserted: Gazette 31 Jul 2007 p. 3812.]

45B. Term used: trial date

In this Part —

trial date of a case means the day on which the trial of the case

is listed to start.

[Rule 45B inserted: Gazette 31 Jul 2007 p. 3812.]

45C. Particulars of damages

(1) This rule applies to any party to a case who claims damages in

the case.

(2) The party must file and serve particulars of damages within

60 days after the day the defence (or if there is more than one

defendant, the first defence) is filed.

(3) If the case is a personal injuries action, the particulars of

damages must set out in detail the amount of money claimed for

any of the following, the justification for claiming it, and how it

is calculated —

(a) loss of earning capacity —

(i) past; and

(ii) future;

(b) loss of superannuation due to —

(i) past loss of earning capacity; and

(ii) future loss of earning capacity;


Documents to be filed, served or delivered before trial Part 4A

r. 45D


(c) special damages;

(d) past gratuitous services;

(e) interest on past loss and expenditure;

(f) future need —

(i) for medical services; and

(ii) for nursing and other care and assistance

services, whether paid or gratuitous; and

(iii) for appliances, and modifications to equipment

and environment;

(g) any other discrete item of damages.

(4) If the case is not a personal injuries action, the particulars of

damages must set out in detail any amount of money claimed,

the justification for claiming it, and how it is calculated.

[Rule 45C inserted: Gazette 31 Jul 2007 p. 3813.]

45D. Building and engineering contracts, actions involving claims

under


Scott Schedule means a statement of the issues of fact and law

that the plaintiff contends will need to be determined at trial.

(2) This rule applies to a case in which a claim is made under a

building or engineering contract.

(3) The plaintiff must apply to the Court for a direction as to

whether the plaintiff is to lodge a Scott Schedule.

(4) The application must be made within 75 days after the day the

defence (or if there is more than one defendant, the first

defence) is filed.

[Rule 45D inserted: Gazette 31 Jul 2007 p. 3813.]



r. 45E


45E. Index of expert witness reports


report of an expert witness includes the notes of a treating

medical practitioner.

(2) This rule applies if under rule 40(5)(a) the presiding officer

orders the parties to attend a listing conference.

(3) A party must file and serve an index of the reports of any expert

witness that the party intends to tender as evidence at trial and

must do so —

(a) at least 14 days before the day of the listing conference,

if the party is the plaintiff; and

(b) at least 7 days before the day of the listing conference, in

the case of any other party.

(4A) If a party has filed an index under subrule (3) and —

(a) the party receives a written notification from an expert

witness that the witness has changed his or her view

expressed in a report included in the index; or

(b) the party has changed his or her intention as to any

report of an expert witness from that set out in the index,

the party must file and serve an amended index of the reports of

any expert witness that the party intends to tender as evidence at

trial and must do so —

(c) in the case of a change of view, within 7 days of

receiving the notification; or

(d) in the case of a change of intention, immediately after

the change of intention and in any event at least 14 days

before the commencement of the trial.

(4) At any time before the 21 day period preceding the trial date, a

party served with an index (A) may serve the party who served

the index (B) with a notice requiring information as to the

qualifications and experience of an expert witness whose report

is listed in the index.



r. 45F


(5) On A serving B with a notice, B must provide the information

within 7 days.

(6) Except with the leave of the Court, a party cannot tender the

report of an expert witness as evidence unless the party has

complied with this rule in relation to that report.

[Rule 45E inserted: Gazette 31 Jul 2007 p. 3814; amended:

Gazette 18 Nov 2011 p. 4811-12.]

45F. Papers for judge

(1) At least 42 days before the trial date, the plaintiff must file and

serve the papers for the judge comprising —

(a) the pleadings, and any affidavits ordered to stand as

pleadings, with any amendments to them incorporated

and the dates of those amendments; and

(b) the particulars of damages filed and served under

rule 45C; and

(c) any request or order for particulars that has been made

together with the particulars given; and

(d) any order for directions made under the RSC Order 19

rule 4.

(2) If the pleadings are amended after the plaintiff has filed and

served the papers referred to in subrule (1), the plaintiff must

file and serve the whole of the pleadings as amended unless the

Court orders otherwise.

[Rule 45F inserted: Gazette 31 Jul 2007 p. 3814.]

45G. Reception of plans etc. in evidence

(1) The RSC Order 36 rule 4 does not apply to a case.

(2) Unless before or at the trial the Court otherwise orders, no plan,

photograph or model shall be receivable in evidence at the trial

in a case unless at least 28 days before the trial the parties, other

than the party who intends to produce it, are given the



r. 45H


opportunity to inspect it and to agree to its admission without

further proof.

[Rule 45G inserted: Gazette 10 Dec 2010 p. 6265.]

45H. Outline of submissions

(1A) The RSC Order 34 rule 1A does not apply to a case.

(1) A party must file and serve the “Outline of submissions” —

(a) 42 days before the trial date, if the party is the plaintiff;

or

(b) 28 days before the trial date, in the case of any other

party.

(2) The Outline of submissions consists of a Form 3 to which is

attached —

(a) a document titled “Submissions”; and

(b) a document titled “Legal authorities”; and

(c) if the party wants the Court to make orders, a document

titled “List of orders wanted”; and

(d) if the party chooses, a document titled “Draft

chronology”.

(3) The document titled “Submissions” —

(a) must contain the contentions of law or fact the party

intends to make at the trial, expressed so as to convey

the substance of them clearly and as succinctly as

possible; and

(b) must set out the contentions in numbered paragraphs;

and

(c) must refer to each principal legal authority on which the

party relies in support of the contention, and each

relevant page or paragraph in that authority; and

(d) must not be more than 10 pages long; and

(e) must be signed by the person who prepared it.



r. 45H


(4) The document titled “Legal authorities” —

(a) must list, and number consecutively, each principal legal

authority to which the Court is referred, under these

headings in this order —

(i) “Written laws”;

(ii) “Judgments”;

(iii) “Legal texts”;

and

(b) must mark with an asterisk any legal authority from

which it is intended to read any text to the Court at the

hearing; and

(c) for each written law listed, include its short title, its

jurisdiction and each relevant rule or provision of it; and

[Example:

Written laws:

*1. Interpretation Act 1984 (WA) s. 5 “under”; s. 61.

2. Acts Interpretation Act 1901 (Cth) s. 22(1).]

(d) for each judgment listed, include —

(i) first, its citation in an authorised law report

(if any) and any page of it on which is a relevant

passage; and

(ii) second, its media neutral citation (if any);

[Example:

Judgments:

*3. Ward v The Queen (2000) 23 WAR 254 at 274; [2000]

WASCA 413 at [106].

4. Talbot v Lane (1994) 14 WAR 120.]

and

(e) for each authoritative legal text listed, refer to the edition

concerned and to each relevant passage.

(5) The document titled “List of orders wanted” must set out the

orders that the party wants the Court to make.



r. 45I


(6) The document titled “Draft chronology” must state succinctly in

numbered paragraphs arranged in date order the date and facts

of each event that is material to the case.

[Rule 45H inserted: Gazette 31 Jul 2007 p. 3816-17; amended:

Gazette 10 Dec 2010 p. 6265; 31 Dec 2013 p. 6553; 7 Sep 2018

p. 3185.]

45I. List of witnesses

(1) At least 7 days before the trial date for a case, a party to the case

must file and serve a document listing, in the order in which

they will be called, each witness that the party intends to call to

give evidence and stating —

(a) any special circumstances that affect the date or time

when the witness can be called; and

(b) any directions that the Court has made in relation to the

taking of evidence from the witness by audio link or

video link.

(2) Except with the leave of the Court, a party cannot call a witness

at a trial unless the party has complied with this rule in relation

to that witness.

[Rule 45I inserted: Gazette 31 Jul 2007 p. 3817.]


Obtaining evidence Part 5

Discovery Division 1

r. 46


Part 5 — Obtaining evidence

Division 1 — Discovery

46. RSC Order 26 modified in actions commenced by writ

(1) The RSC Order 26 applies to an action commenced by writ,

subject to this rule.

(2) Subject to any order made by the Court, each party to the action

must give each other party discovery of all documents that are

or have been in the party’s possession, custody or power

relating to any matter in question in the action.

(2a) If a plaintiff in a personal injuries action is required under

subrule (2) to give discovery of income tax returns, the plaintiff

must discover the returns lodged by the plaintiff for, at least —

(a) the financial year during which the incident pleaded as

the cause of the personal injuries occurred; and

(b) each of the 2 preceding financial years.

(3) With the consent of each other party to the action, discovery

may be by way of an informal list, but otherwise shall be by

way of affidavit served on the other parties.

(4) Discovery must be given by all parties within 60 days after a

defence (or if there is more than one defendant, the first

defence) is filed.

(5) The RSC Order 26 rule 8(1) applies as if the reference to 7 days

were amended to 14 days.


Division 2 — Interrogatories

47. RSC Order 27 modified

(1) The RSC Order 27 applies, subject to this rule.


Part 5 Obtaining evidence

Division 3 Medical examination

r. 47A


(2) Leave of the Court to serve notice on a party is not required

under the RSC Order 27 rule 1(1) if the party consents to being

served without the leave of the Court.

(3) Leave of the Court to serve notice on a party is not required

under the RSC Order 27 rule 1(1) if the action is a personal

injuries action and —

(a) the notice is served within 75 days after the party files a

defence; and

(b) the interrogatories specified in the notice relate to —

(i) the occurrence of the incident pleaded as the

cause of the personal injuries; or

(ii) the defendant’s system for preventing incidents

of the type alleged to have occurred; or

(iii) the plaintiff ’s medical history in the 5 years prior

to the incident; or

(iv) the symptoms and treatment of the personal

injuries pleaded; or

(v) the plaintiff ’s employment history in the 5 years

prior to the accident.

(4) A party applying for leave under the RSC Order 27 rule 1 to

serve interrogatories must —

(a) file and serve with the application a minute of the

proposed interrogatories; and

(b) make the application at least 7 days before it is heard.

Division 3 — Medical examination


47A. RSC Order 28 modified


(2) For the purposes of subrule (1), a reference in the RSC Order 28

rule 1 to a “medical practitioner” or a “medical adviser” is to be


Obtaining evidence Part 5

Medical examination Division 3

r. 47A


taken as being a reference to a person registered under the

Health Practitioner Regulation National Law (Western

Australia), or a substantially similar law of another jurisdiction,

in any of the following health professions —

(a) dental;

(b) medical;

(c) occupational therapy;

(d) optometry;

(e) physiotherapy;

(f) psychology.



Part 5A Expert evidence

r. 47B


Part 5A — Expert evidence

[Heading inserted: Gazette 7 Sep 2018 p. 3185.]

47B. Terms used

In this Part —

expert medical evidence means the evidence of a medical expert

on medical matters;

medical expert means a person registered under the Health

Practitioner Regulation National Law (Western Australia) in

any of these health professions —

(a) dental;

(b) medical;

(c) occupational therapy;

(d) optometry;

(e) physiotherapy;

(f) psychology;

medical report means a written report containing expert medical

evidence;

personal injury case means a case in which a claim is made in

respect of —

(a) a person’s personal injuries (including any illness or

impairment of physical or mental condition); or

(b) a person’s death.

[Rule 47B inserted: Gazette 7 Sep 2018 p. 3185-6.]

47C. RSC Order 36A does not apply

The RSC Order 36A does not apply to a case.

[Rule 47C inserted: Gazette 7 Sep 2018 p. 3186.]


Expert evidence Part 5A

r. 47D


47D. General procedural matters

(1) Any application made under this Part before trial must be made

by summons.

(2) A direction given under this Part may be revoked or varied by a

subsequent direction given at or before the trial in the case.

[Rule 47D inserted: Gazette 7 Sep 2018 p. 3186.]

47E. Expert medical evidence in personal injury cases

(1) This rule applies to expert medical evidence in personal injury

cases.

(2) Nothing in this rule requires evidence to be disclosed to a

defendant who has not entered an appearance.

(3) A direction given under this rule may apply to only a part of a

medical report or expert medical evidence.

(4) Unless the Court directs otherwise, a party must serve on the

other parties, in accordance with this rule, a copy of each

medical report the substance of which the party intends to rely

on at the trial.

(5) Each copy referred to in subrule (4) must be served —

(a) if the medical report is in existence before the case is

entered for trial —

(i) if the report will be relied on by the party

entering the case for trial — before the case is

entered for trial; or

(ii) if the report will be relied on by another party —

before the time for applying under rule 38B for

an order countermanding the entry for trial

expires, or any later time that may be fixed by an

order made on any such application;

or



r. 47E


(b) if the medical report comes into existence after the case

is entered for trial — as soon as practicable thereafter.

(6) If a party applies for a direction under subrule (4) —

(a) an affidavit supporting the application is not required;

and

(b) the Court may inspect the medical report the subject of

the application without disclosing its contents to any

other party.

(7) If the Court gives a direction under subrule (4), it may direct

that, in lieu of serving a copy of any medical report, the

substance of all or any expert medical evidence that a party

intends to rely on at the trial be disclosed in writing to such

other parties and within such period as the Court specifies.

(8) Except with the Court’s leave, or pursuant to a direction of the

Court, or where all other parties agree, expert medical evidence

cannot be adduced at a trial unless —

(a) a copy of a medical report containing the substance of

the evidence has been served in accordance with

subrules (4) and (5); or

(b) the substance of that evidence has been disclosed in

writing to all other parties within the time limited by a

direction given under subrule (7) or, if no such direction

has been given, a reasonable time before the trial; or

(c) the Court has permitted the evidence to be given by

affidavit.

(9) Without limiting the Court’s powers under this rule, the Court

may give a direction under subrule (4) or (7) or give leave under

subrule (8) if a medical report contains —

(a) statements by the party against whose interest the

evidence is to be led; or

(b) hearsay evidence as to the manner in which a personal

injury was sustained; or


Expert evidence Part 5A

r. 47F


(c) other evidence that would not be admissible at the trial.

[Rule 47E inserted: Gazette 7 Sep 2018 p. 3186-8.]

47F. Other expert evidence

(1) This rule applies to expert evidence other than expert medical

evidence in personal injury cases.

(2) A direction given under this rule may apply to only a part of the

report or evidence of an expert.

(3) Expert evidence cannot be adduced at a trial unless —

(a) the party seeking to adduce the evidence has applied to

the Court to determine whether a direction should be

given under this rule and has complied with any

direction given on the application; or

(b) all parties consent to it being adduced; or

(c) the Court has given leave for it to be adduced; or

(d) the Court has permitted the evidence to be given by

affidavit.

(4) After a case is entered for trial —

(a) the party who entered the case for trial cannot apply

under subrule (3); and

(b) any other party cannot apply after the time for applying

under rule 38B for an order countermanding the entry

for trial expires, or any later time that may be fixed by

an order made on any such application.

(5) On an application made under this rule, the Court may direct —

(a) that a copy of an expert witness’s report, the substance

of which a party intends to rely on at the trial, be served

on such other parties and within such period as the Court

may specify; or

(b) the substance of all or any expert evidence that a party

intends to adduce at the trial be disclosed in writing to



r. 47G


such other parties and within such period as the Court

may specify.

(6) The author of a report containing expert evidence must certify in

the report to having read and complied with the practice

direction made by the Court for the purposes of this subrule.

(7) If a report has not been certified as required by subrule (6), it is

not admissible at trial, except with the Court’s leave.

[Rule 47F inserted: Gazette 7 Sep 2018 p. 3188-9.]

47G. Derogation of privilege

If under rule 47E or 47F a party is required or directed to

disclose any expert evidence, the party cannot, after the time

fixed for disclosure by the rule or direction (as the case may be)

expires, object on the ground of privilege (within the meaning

of the Evidence Act 1906 section 32A) to the evidence being

disclosed.

[Rule 47G inserted: Gazette 7 Sep 2018 p. 3189.]

47H. Enforcing this Part

(1) Rules 47E(7) and 47F(3) do not affect the enforcement under

any other provisions of these rules of a direction given under

this Part.

(2) A direction given under this Part is not enforceable by a writ of

attachment or an order of committal.

[Rule 47H inserted: Gazette 7 Sep 2018 p. 3189.]

47I. Court may limit expert evidence

Before or at the trial in a case, the Court may, by a direction,

limit the number of medical experts or other experts who may

be called as witnesses at the trial.

[Rule 47I inserted: Gazette 7 Sep 2018 p. 3189.]


Subpoenas Part 5BA

r. 48AA


Part 5BA — Subpoenas


48AA. RSC Order 36B rules 1 and 2 modified: subpoena must not

require both attendance and production

(1A) The RSC Order 36B rule 1(1) applies as if the definition of

Registry were deleted and replaced by the definition of Registry

in rule 3 of these rules.

(1) The RSC Order 36B rule 1(1) applies as if, in the definition of

subpoena, paragraph (c) were deleted.

(2) The RSC Order 36B rule 2(1) applies as if paragraph (c) were

deleted.

(3) This rule does not apply to a subpoena for which leave to serve

the subpoena in New Zealand is to be sought pursuant to the

RSC Order 39A.

[Rule 48AA inserted: Gazette 26 Jul 2013 p. 3413; amended:

Gazette 7 Sep 2018 p. 3189.]

48AB. RSC Order 36B rule 3 modified: form of subpoena

(1) The RSC Order 36B rule 3(1) and (1A) do not apply to a case.

(2) A subpoena to attend to give evidence must —

(a) be in the form of Form 4A; and

(b) have attached to it a notice in the form of Form 4B.

(3) A subpoena to produce must be in the form of Form 4C.

(4) This rule does not apply to a subpoena for which leave to serve

the subpoena in New Zealand is to be sought pursuant to the

RSC Order 39A.

[Rule 48AB inserted: Gazette 26 Jul 2013 p. 3413-14;

amended: Gazette 7 Sep 2018 p. 3189.]


Part 5BA Subpoenas

r. 48AC


48AC. RSC Order 36B rule 5A modified: form of subpoena

(1) The RSC Order 36B rule 5A applies subject to this rule.

(2) An issuing party must, as soon as practicable after giving a

notice under the RSC Order 36B rule 5A(2) and (3)to the

addressee —

(a) file a copy of the notice; and

(b) serve a copy of the notice on each other party.

[Rule 48AC inserted: Gazette 26 Jul 2013 p. 3414; amended:

Gazette 7 Sep 2018 p. 3190.]

48AD. RSC Order 36B rule 7 modified: USB devices not permitted

The RSC Order 36B rule 6(7)(b) applies as if the reference to

“USB device” were omitted.

[Rule 48AD inserted: Gazette 7 Sep 2018 p. 3190.]

48AE. Subpoenas to produce not addressed to health professionals

(1) This rule applies to a subpoena to produce other than a

subpoena to which rule 48AF applies.

(2) Unless the Court otherwise directs under the RSC Order 36B

rule 9, a document produced in response to a subpoena may —

(a) be inspected by a party; and

(b) with the approval of a registrar, be copied by a party.

[Rule 48AE inserted: Gazette 26 Jul 2013 p. 3414-5; amended:

Gazette 7 Sep 2018 p. 3190.]

48AF. Subpoenas to produce addressed to health professionals

(1) This rule applies to a subpoena to produce —

(a) issued in a personal injuries action; and

(b) addressed to a health professional, a hospital, or a person

that manages the records of a health professional.


Subpoenas Part 5BA

r. 48AG


(2) Unless the Court otherwise directs under the RSC Order 36B

rule 9, a document produced in response to a subpoena may —

(a) be inspected and copied by the plaintiff; and

(b) after 7 days from the date for production specified in the

subpoena, be inspected and, with the approval of a

registrar, copied by each other party.

[Rule 48AF inserted: Gazette 26 Jul 2013 p. 3415; amended:

Gazette 7 Sep 2018 p. 3190.]

48AG. RSC Order 36B rule 10 modified: disposal of documents

and things produced

(1) The RSC Order 36B rule 10 applies subject to —

(a) this rule; and

(b) the RSC Order 34 rule 14.

(2) The RSC Order 36B rule 10 applies as if subrule (3) were

replaced by subrule (3) of this rule.

(3) The issuing party must attach to the front of a subpoena to

produce to be served on the addressee —

(a) if the action is a personal injuries action and the

addressee is a health professional, a hospital, or a person

that manages the records of a health professional, a

notice and declaration in the form of Form 4D; and

(b) otherwise, a notice and declaration in the form of

Form 4E.

[Rule 48AG inserted: Gazette 26 Jul 2013 p. 3415-16.]

48AH. RSC Order 36B rule 11 modified: losses and expenses

incurred in compliance

(1) The RSC Order 36B rule 11 applies, subject to this rule.

(2) Unless the Court orders, or the issuing party and the addressee

agree, otherwise, when serving a subpoena to produce, the


Part 5BA Subpoenas

r. 48AH


issuing party must pay to the addressee the amount of $80 for

any loss or expense incurred in complying with it.

(3) This rule does not —

(a) affect the Court’s power to make an order under the

RSC Order 36B rule 11(1); or

(b) limit the amount that may be fixed under the RSC

Order 36B rule 11(2).

[Rule 48AH inserted: Gazette 26 Jul 2013 p. 3416.]


Applications before trial Part 5B

r. 48A


Part 5B — Applications before trial


48A. Amending pleadings, RSC Order 21 modified


(2A) The RSC Order 21 rule 3 operates as if subrule (1) of it were

replaced by subrule (2B) of this rule.

[(2B) deleted]

(2) A party to a case cannot amend any of its pleadings, without the

Court’s leave, after whichever of the following happens first —

(a) a certificate is tendered under rule 43(3a) in the case on

behalf of any party; or

(b) the case is listed for trial.

(3) An application for leave to amend a pleading must be

accompanied by an affidavit of the party making the application,

or the lawyer representing the party, that sets out the facts —

(a) that have arisen since the time expired for amending a

pleading without the Court’s leave; and

(b) that ground the party’s or the lawyer’s argument that the

amendment is necessary.

[(4) deleted]

[Rule 48A inserted: Gazette 31 Jul 2007 p. 3818; amended:

Gazette 10 Dec 2010 p. 6265; 7 Sep 2018 p. 3190-1.]

48B. Interlocutory applications after listing for trial

(1A) This rule does not apply to an interlocutory application to

amend pleadings.

(1) If an application for an interlocutory order is filed after a case is

listed for trial, the application must be accompanied by an

affidavit of the party making the application or the lawyer

representing the party.


Part 5B Applications before trial

r. 48B


(2) The affidavit is to set out the facts that ground the party’s or the

lawyer’s argument that the order is necessary.

(3) Unless justice requires otherwise, the Court will not grant an

application referred to in subrule (1) if to do so would

necessitate adjourning the trial.

[Rule 48B inserted: Gazette 31 Jul 2007 p. 3818-19; amended:

Gazette 7 Sep 2018 p. 3191.]


Appeals to the Court Part 6

r. 49


Part 6 — Appeals to the Court

49. Terms used


appealable decision means an award, a determination, a finding,

a judgment or any other decision, that by virtue of a written law

may be the subject of an appeal to the Court but not a decision

of a registrar;

primary court in relation to an appealable decision, means the

court, tribunal, person or body that made the decision;

WCIMA appeal means an appeal under the Workers’

Compensation and Injury Management Act 1981 section 247(1).

[Rule 49 amended: Gazette 18 Nov 2011 p. 4812.]

50. Appeal, nature of

(1) An appeal to the Court must be by way of a reconsideration of

the evidence that was before the primary court unless the parties

agree otherwise.

(2) At the hearing of an appeal a party must not adduce evidence

that was not adduced in the primary court except with the leave

of the Court.

(3) The Court is not to grant such leave unless satisfied there are

special grounds for doing so.

(4) This rule is subject to the written law that provides for the

appeal to be made to the Court.


51A. Time for appealing

Unless another written law provides otherwise, an appeal to the

Court against an appealable decision must be commenced

within 21 days after the date of the decision.



Part 6 Appeals to the Court

r. 51


51. Appeal, commencement of

(1) To —

(a) commence an appeal (other than a WCIMA appeal) to

the Court against an appealable decision; or

(b) apply for an extension of time within which to

commence such an appeal,

the appellant must file these documents —

(c) a Form 6 (Appeal notice) that sets out the grounds for

the appeal in accordance with subrule (3);

(d) any document required by subrule (2).

(2) If Form 6 says an extension of time within which to commence

the appeal is needed, the form must be filed with an affidavit by

the applicant or the applicant’s lawyer or both explaining why

the appeal was not commenced within time.

(3) The grounds of appeal in a notice of appeal must not merely

allege that an appealable decision is against the weight of the

evidence or that it is wrong in law, they must specify the

particulars relied on to demonstrate that the decision is against

the weight of the evidence and the specific reasons why it is

wrong in law.

(4A) To —

(a) commence a WCIMA appeal to the Court against an

appealable decision; and

(b) make an application for leave under the Workers’

Compensation and Injury Management Act 1981

section 247(1),

the appellant must file a Form 8A (Appeal notice (WCIMA

appeal)) that sets out the matters referred to in subrule (4B).



r. 51


(4B) In Form 8A the appellant must state —

(a) the question of law the subject of the appeal; and

(b) the error alleged to have been made by the arbitrator;

and

(c) the decision that the appellant claims should be made in

relation to that question of law.

(4) An appeal notice or an appeal notice (WCIMA appeal) must be

served on the respondent either personally or, if the respondent

is in a prison, by sending it to the superintendent of the prison

by ordinary prepaid post.

(5) If an appeal is made under the Criminal Injuries Compensation

Act 2003 Part 7 —

(a) the notice of appeal, and any other document filed in the

appeal must be served on —

(i) the Chief Assessor of Criminal Injuries

Compensation appointed under that Act; and

(ii) the State Solicitor’s Office, on behalf of the chief

executive officer of the department of the Public

Service that principally assists the Minister in the

administration of that Act;

and

(b) service of the documents may be effected by ordinary

prepaid post.

(6) When an appeal notice or an appeal notice (WCIMA appeal) is

served on a respondent, it must have attached to it a Form 8

(Notice of respondent’s intention).

(7) As soon as practicable after serving the respondent the appellant

must file a Form 7 (Service certificate).

[Rule 51 amended: Gazette 10 Dec 2010 p. 6266; 17 Jun 2011

p. 2162-3; 18 Nov 2011 p. 4812-13.]



r. 52


52. Primary court to supply records when given notice


primary court case means the action, case, matter or

proceedings in the primary court in which the appealable

decision was made.

(2) As soon as practicable after an appeal notice or an appeal notice

(WCIMA appeal) is filed in respect of an appealable decision, a

legally qualified registrar must give the primary court concerned

a copy of it.

(3) As soon as practicable after being given the copy of the appeal

notice or an appeal notice (WCIMA appeal), the primary court

must give the Court a copy of the following documents —

(a) any record that has been filed or filed with the primary

court as required by law and that forms part of the

court’s record of the primary court case;

(b) any record admitted as evidence in the primary court

case together with a list of them and the exhibit numbers

given to them by the primary court;

(c) any record tendered in the primary court case but not

admitted as evidence in the case together with a list of

them and any numbers given to them by the primary

court;

(d) the transcript of the proceedings in the primary court

case or the notes made by the judicial officer who

presided at the proceedings;

(e) the primary court’s decision in the primary court case

and any written reasons given for it;

(f) any other record held by the primary court that is or may

be relevant to the appeal.

(4) Any copy of a document given by the primary court to the Court

need not be certified by the primary court.



r. 53


(5) If any of the documents given to the Court contains information

to which access by any person is or should be restricted, the

primary court must advise the Court.

(6) A legally qualified registrar may —

(a) request a primary court to comply with subrule (3) by a

date set by the registrar;

(b) decide any question that arises about what must be sent

to the Court under subrule (3).

(7) The documents given to the Court form part of the District

Court’s record.

[Rule 52 amended: Gazette 31 Jul 2007 p. 3819; 17 Jun 2011

p. 2163; 18 Nov 2011 p. 4813.]

53. Appeal, responding to

(1) On being served with an appeal notice or an appeal notice

(WCIMA appeal), a respondent may file a Form 8 (Notice of

respondent’s intention).

(2) If the respondent files a Form 8, it must be filed within 21 days

after the date on which the respondent is served with the appeal

notice or an appeal notice (WCIMA appeal).

(3) If a respondent intends to seek to uphold the appealable decision

on grounds other than those relied on by the primary court that

made it, or to vary the decision, or to cross-appeal, the

respondent must include in the Form 8 the grounds for doing so.

(4) The Notice of respondent’s intention must —

(a) if the respondent seeks to uphold the appealable decision

on grounds other than those relied on by the primary

court that made it, state the grounds for doing so;

(b) if the respondent seeks to vary the appealable decision,

state the grounds for doing so;



r. 55


(c) if the respondent is cross-appealing —

(i) set out the particulars of the appealable decision

or that part of it to which the cross-appeal relates;

and

(ii) state the grounds of the cross-appeal.

(5) Rule 51(3) applies to the grounds of a cross-appeal as it does to

the grounds of an appeal.

(6) If a respondent does not file a Form 8 within the 21 days or any

extension of that period ordered by the Court, the respondent is

not entitled to take part or be heard in the appeal and is not a

party to the appeal for the purposes of these rules.


p. 6266; 17 Jun 2011 p. 2163; 18 Nov 2011 p. 4813-14;

26 Jul 2013 p. 3416.]

[54. Deleted: Gazette 17 Jun 2011 p. 2164.]

55. Directions hearing

(1) The appellant and each respondent that has filed a Form 8

(Notice of respondent’s intention) in an appeal must attend a

directions hearing on the date specified in the appeal notice or

an appeal notice (WCIMA appeal).

(2) At the directions hearing a legally qualified registrar may grant

leave under the Workers’ Compensation and Injury

Management Act 1981 section 247(1).

(3) At the directions hearing a legally qualified registrar may make

any order or direction that in his or her opinion will or may

facilitate the appeal being conducted efficiently, economically

and expeditiously, including —

(aa) granting leave under the Workers’ Compensation and

Injury Management Act 1981 section 247(6) or making

an order under section 250(1) of that Act; and

(a) an order giving leave under rule 56; and



r. 56A


(b) directions as to how the material necessary to determine

the appeal is to be presented; and

(c) directions as to the preparation of appeal books,

including directions as to the inclusion of some or all of

a certified copy of the transcript of the proceedings in

the primary court, or of a certified copy of the notes of

such proceedings taken by the presiding official; and

(d) directions fixing a timetable for interlocutory

applications; and

(e) directions setting the date, time and length of time for

the hearing of the appeal; and

(f) any order under rule 57, other than under paragraphs (h)

or (j) of that rule.

[Rule 55 amended: Gazette 31 Jul 2007 p. 3819; 17 Jun 2011

p. 2164; 18 Nov 2011 p. 4814.]

56A. Dismissing appeals for want of prosecution

If the fee payable under the District Court (Fees)

Regulations 2002 for the allocation of a hearing date for an

appeal is not paid or waived within 14 days after the date on

which the hearing date is set —

(a) the Court will not hear the appeal on that hearing date;

and

(b) the parties to the appeal must attend a directions hearing

before a registrar on the date of that hearing date; and

(c) the registrar may dismiss the appeal for want of

prosecution.


56. New grounds of appeal etc. only with leave

Except with the leave of the Court, a party to an appeal is not

entitled to seek any relief or rely on any ground that is not set

out in the notice of appeal or the answer, as the case may be.



r. 57


57. Court’s powers as to appeals

(1) This rule is subject to the written law that provides for the

appeal to be made to the Court.

(2) Before or during the hearing of an appeal, the Court, on

application or, after notifying the parties, on its own initiative,

and on any terms needed, may —

(a) order a stay of execution of any appealable decision

against which an appeal (other than a WCIMA appeal)

has been, or the Court is satisfied will be, commenced;

(b) order the notice of appeal or an answer, or any part of it,

to be struck out;

(c) order the appeal to be conducted at a different registry;

(d) order the appeal be heard at a different place;

(e) order 2 or more appeals to be consolidated;

(f) order the notice of appeal or an answer to be served on a

person who is not a party to the appeal;

(g) order substituted service of any document;

(h) give leave under rule 50(2);

(i) give leave under rule 56;

(j) make orders as to the admission or otherwise of

evidence in an affidavit;

(k) give leave or make an order under rule 58;

(l) dismiss an appeal for want of prosecution;

(m) adjourn the hearing of the appeal;

(n) adjourn the appeal to a further direction hearing before a

Registrar under rule 55.

(3) Before or during the hearing of a WCIMA appeal, the Court

may —

(a) grant leave under the Workers’ Compensation and

Injury Management Act 1981 section 247(1); or



r. 58A


(b) grant leave under section 247(6) or make an order under

section 250(1) of that Act.

[Rule 57 amended: Gazette 18 Nov 2011 p. 4814; 26 Jul 2013

p. 3417.]

58A. Orders in appeals, applying for

(1) At any time before an appeal is concluded, a party to an appeal

may apply for an order in the appeal or an order amending or

cancelling an order in the appeal in —

(a) a Form 8A (Appeal notice (WCIMA appeal)); or

(b) a Form 8 (Notice of respondent’s intention); or

(c) a Form 9 (Application in an appeal).

(2) A party making an application under subrule (1) must file, and

serve on each other party, together with the form by which the

application is made —

(a) an affidavit by the applicant or the applicant’s lawyer or

both explaining why the interim order is wanted; and

(b) a document setting out the proposed order,

unless —

(c) these rules provide otherwise; or

(d) another written law provides otherwise; or

(e) a judge or legally qualified registrar orders otherwise.

[Rule 58A inserted: Gazette 17 Jun 2011 p. 2164-5; amended:

Gazette 18 Nov 2011 p. 4815.]

58B. Consenting to orders

The parties to an appeal may consent to an order being made by

the court by filing a Form 10 (Consent notice).

[Rule 58B inserted: Gazette 17 Jun 2011 p. 2165.]



r. 58


58. Discontinuance

(1) Unless subrule (3) applies, if no respondent has filed an answer

that seeks to vary the appealable decision or cross-appeals, the

appellant, without the Court’s leave, may discontinue an appeal

at any time before it is heard.

(2) Unless subrule (3) applies, if a respondent has filed an answer

that seeks to vary the appealable decision or cross-appeals, then

at any time before it is heard —

(a) the appellant may discontinue the appeal with the

consent of the respondent; and

(b) the respondent may discontinue the application to vary,

or the cross-appeal, with the consent of the appellant.

(3) An appeal commenced by, or an answer filed by, a person under

a disability may only be discontinued with the leave of the

Court which may make any consequential order needed,

including an order as to costs and the disposal of money paid to

the Court as security for costs.

(4) A party wishing to discontinue must file and serve a Form 11

(Discontinuance notice) together with any consent of another

party required by subrule (2).

(5) In the case of a discontinuance under subrule (1), the appellant

must pay the respondent’s costs to the date of discontinuance

unless the parties agree otherwise.

(6) In the case of a discontinuance under subrule (2), unless the

parties agree, or the Court orders, otherwise —

(a) if the appellant discontinues, the appellant must pay the

respondent’s costs to the date of discontinuance;

(b) if the respondent discontinues, the respondent must pay

the appellant’s costs to the date of discontinuance.



r. 59


(7) Unless subrule (3) or rule 61A applies, money paid to the Court

as security for costs is to be disposed of in accordance with a

filed written agreement of the parties or, in the absence of an

agreement, an order of the Court.

(8) If the parties cannot agree the amount of costs, they are to be

taxed.

[Rule 58 amended: Gazette 17 Jun 2011 p. 2165; 31 Dec 2013

p. 6554.]

59. Costs

(1) The awarding of the costs of and incidental to an appeal is in the

discretion of the Court.

(2) On determining an appeal the Court may fix the amount of costs

but otherwise they are to be taxed in accordance with the Legal

Profession Act 2008 section 280.

(3) On determining an appeal, the Court may make any order as to

any money paid to the Court as security for costs that is just

having regard to any order made as to costs.

(4) If the Court does not make an order under subrule (3), a legally

qualified registrar may make such an order at any time.


p. 6266; 7 Sep 2018 p. 3191.]

60. Final orders on appeal

(1) A legally qualified registrar must settle any order made on

determining an appeal.

(2) A legally qualified registrar must send a copy of any order made

on determining an appeal to the primary court registrar together

with a copy of the judgment given on appeal and the reasons

for it.




r. 61A


61A. Return of security for costs deposit


concluded, in relation to an appeal, means decided, dismissed or

discontinued;

former security for costs provision means —

(a) rule 51(5) or 53(6) of these rules as in force before the

day on which the District Court Amendment Rules 2010

rules 9 and 10 came into operation; or

(b) the repealed District Court Rules 1996 Order 8 rule 6 or

10; or

(c) the repealed District Court (Appeal) Rules 1977 rule 7

or 11;

security for costs deposit means an amount paid by a party to

the Court as security for the costs of an appeal.

(2) This rule applies to a security for costs deposit paid under —

(a) an order of the Court; or

(b) a former security for costs provision.

(3) The Court must return the security for costs deposit to the party

who paid the deposit if —

(a) the appeal to which the deposit relates —

(i) has not concluded, but no action has been taken

on the appeal for 12 months; or

(ii) has concluded, and within 12 months after the

day on which the appeal concluded the Court

made no order, and the parties did not file a

written agreement, as to the disposal of the

deposit (whether under these rules, the repealed

District Court Rules 1996 or the repealed District

Court (Appeal) Rules 1977);

and

(b) no claim has been made on the deposit.

[Rule 61A inserted: SL 2020/18 r. 4.]


Hearings and trials Part 7

r. 61


Part 7 — Hearings and trials

61. Outline of submissions etc. for certain hearings

[(1) deleted]

(2) This rule applies to the following hearings —

(a) the hearing of an application that a judge or a registrar

has ordered to be subject to this rule because it involves

complex or difficult issues;

(b) unless in a particular case the Court orders otherwise —

(i) a special appointment in judge’s or registrar’s

chambers;

(ii) the hearing of an appeal from a registrar of the

Court;

(iii) the hearing of an appeal to the Court;

(iv) the hearing of an application made under the

Prohibited Behaviour Orders Act 2010 section 5.

(3) A judge or a registrar may make an order under subrule (2)(a)

on his or her own initiative, or on an application by a party.

(4) At least 7 clear working days before the date of the hearing,

each party must file and immediately serve a list of all

documents, including any affidavits, on which the party intends

to rely or to which the party intends to refer at the hearing.

(5) At least 2 clear working days before the date of the hearing,

each party must file and immediately serve an Outline of

submissions as described in rule 45H(2) to (6) and the reference

in rule 45H(3)(a) to the trial is to be read as a reference to the

hearing.

[Rule 61 amended: Gazette 31 Jul 2007 p. 3819-20;

17 Jun 2011 p. 2153.]


Part 8 Civil Judgments Enforcement Act 2004 rules

r. 62


Part 8 — Civil Judgments Enforcement Act 2004 rules

62. Terms used


Act means the Civil Judgments Enforcement Act 2004;

section means a section of the Act.

63. Applications etc. that may be dealt with by a registrar

(1) Each of the following applications and requests, if made to the

Court, may be dealt with by a registrar —

(a) an application made under a section listed in the Table to

this subrule;

(b) an application for an order under section 10, 15(5)(a)

or 20(3);

(c) an application for leave under section 13(1)(a).

Table

s. 15(1) s. 41(2) s. 59(1)

s. 27 s. 42(1) s. 95(1)

s. 28 s. 49(1) s. 101(1)

s. 32 s. 55(2) s. 102(2)

s. 33 s. 56(1) s. 103(2)

s. 35(1) s. 58(1)

(2) A registrar who is dealing with an application or request may

exercise any power conferred by the Act on the Court in respect

of the application.

(3) A registrar may conduct a means inquiry under section 30 and

for that purpose exercise any power in section 30 or 31.

64. Registrar’s decision, review of

For the purposes of section 9, Part 2 Division 3 of these rules,

with any necessary changes, applies for the purpose of any

review of a registrar’s decision under the Act.


Misuse of Drugs Act 1981 rules Part 9

r. 65


Part 9 — Misuse of Drugs Act 1981 rules

65. Terms used


Act means the Misuse of Drugs Act 1981;

application means an application under section 28(3)(b);

claimant has the same meaning as in section 28(2);

DPP means the Director of Public Prosecutions for the State;

respondent means —

(a) in the case of an application made by a claimant, the

DPP;

(b) in the case of an application made by any other person,

any claimant;


66. Applications, how they are to be made

(1) An application to the Court under section 28(3)(b) must be

made by filing and serving a notice of motion.

(2) The notice of motion must set out clearly and concisely the

grounds on which the application is made and must include the

applicant’s address for service.

(3) When, or within 7 days after, the notice of motion is filed, the

applicant must file and serve an affidavit setting out the facts

relied on to support the application.

(4) The notice of motion must be made returnable before a judge in

open court on a date, set by the Court, that is at least 21 days

after the date on which the notice is filed unless —

(a) the respondent consents in writing to an earlier hearing

and the consent is filed with the notice; or

(b) the Court orders the notice to be heard earlier.


Part 9 Misuse of Drugs Act 1981 rules

r. 67


(5) A respondent who is a police officer may be served by serving

the DPP.

67. Respondent’s rights and obligations

(1) A respondent is entitled to be heard on the application.

(2) A respondent who intends to be heard on an application must

file and serve a notice of intention to appear that includes the

respondent’s address for service.

(3) A respondent who has complied with subrule (2) may file an

affidavit in reply to any affidavit filed in support of the

application, and must serve any such affidavit in reply.

68. Court may order parties to be added

If at any time during proceedings on an application it appears to

the Court that a person who is not a party to the proceedings has

an interest in the property concerned, the Court on the

application of a party (which may be made ex parte) or on its

own initiative may order the person to be made a party.

69. Deponents to attend for cross examination

(1) If the Court so orders or another party so requests, a party that

has filed an affidavit in connection with an application must

ensure that the person who made the affidavit attends the

hearing of the application in order to be cross examined.

(2) If the person who made the affidavit does not attend, his or her

affidavit is inadmissible except with the leave of the Court.

70. Evidentiary matters

(1) If a party to an application has been convicted after pleading

guilty —

(a) any statement of a witness that complies with Criminal

Procedure Act 2004 Schedule 3 clause 4 and that has

been disclosed under section 42 or 95 of that Act; and


Misuse of Drugs Act 1981 rules Part 9

r. 70


(b) any recording of a witness’s evidence that has been

made in accordance with Schedule 3 clause 6 of that Act

and that has been disclosed under section 42 or 95 of

that Act,

in the prosecution of the party is admissible at the hearing of the

application.

(2) If a party to an application has been convicted after trial, the

transcript of the oral evidence, and any other evidence, admitted

at the trial is admissible at the hearing of the application.

(3) With the leave of the Court, the evidence referred to in

subrule (2) may be supplemented by oral evidence at the hearing

or by an affidavit admitted in evidence at the hearing.


Part 10A Prohibited Behaviour Orders Act 2010 rules

r. 71A


Part 10A — Prohibited Behaviour Orders Act 2010 rules

[Heading inserted: Gazette 17 Jun 2011 p. 2154.]

71A. Terms used

(1) In this Part, unless the contrary intention appears —

Act means the Prohibited Behaviour Orders Act 2010;


(2) If a term used in this Part is defined in the Act, it has the same

meaning in this Part as it has in the Act, unless the contrary

intention appears.


71B. Application under Act s. 5, how to make

(1) Before making an application under section 5 for a PBO, the

prosecutor must —

(a) complete a Form 4 in accordance with subrule (2); and

(b) submit the original and 2 copies of the completed

Form 4 to a registry; and

(c) after the registry returns those documents bearing the

hearing details and the Court’s seal, retain them until the

application is made under subrule (3).

(2) An application for a PBO must state the following —

(a) the constraints the applicant wants the Court to specify

in the PBO under section 10;

(b) the period of the PBO the applicant wants the Court to

specify in the PBO under section 12.

(3) To make an application under section 5 for a PBO, the

prosecutor must —

(a) give the original of a sealed Form 4, completed in

accordance with this rule, to the judge presiding at the


Prohibited Behaviour Orders Act 2010 rules Part 10A

r. 71B


hearing at which the accused person (the respondent) is

to be sentenced; and

(b) give a copy of that document to the respondent

personally at that hearing.

(4) As soon as practicable after an application made under section 5

is adjourned, a registrar must give the respondent a copy of it in

accordance with section 33.

(5) Within 14 days after the date on which an application for a PBO

is made, the applicant must file and serve an affidavit in support

of the application.

(6) Unless the Court permits otherwise, the supporting affidavit

must state the following —

(a) details of the respondent’s convictions of relevant

offences on which the applicant relies to allege the

respondent is a person described in section 8(2)(a);

(b) if any such conviction is of a relevant offence that is not

a prescribed offence, the material facts of the offence;

(c) details of the matters listed in section 9(3)(a), (c), (e)

and (f);

(d) any other facts on which the applicant intends to rely in

support of the application.

(7) Unless the Court permits otherwise, the supporting affidavit

must refer to and have attached to it each of these documents —

(a) the respondent’s criminal record;

(b) any order referred to in section 9(3)(d) that is in force

against the respondent;

(c) any order listed in section 10(7) that is in force against

the respondent.

[Rule 71B inserted: Gazette 17 Jun 2011 p. 2154-5.]


Part 10A Prohibited Behaviour Orders Act 2010 rules

r. 71C


71C. Application under Act s. 21, how to make

To make an application under section 21 to vary or cancel a

PBO, a person must file the original and 2 copies of —

(a) a completed Form 5; and

(b) an affidavit in support of the application.

[Rule 71C inserted: Gazette 17 Jun 2011 p. 2155.]

71D. Responding to applications

(1) The respondent to an application made under section 5 or 21

may file an affidavit in response to the affidavit filed in support

of the application.

(2) Any such affidavit must be —

(a) filed within 21 days after the date on which the

respondent is served with the affidavit filed in support of

the application; and

(b) served on the applicant at least 5 clear days before the

hearing of the application.

[Rule 71D inserted: Gazette 17 Jun 2011 p. 2155.]

71E. Corrected PBO, registrar’s duties as to

If a PBO is corrected under section 25, a registrar must cause a

copy of the corrected PBO to be given —

(a) to each party to the PBO proceedings; and

(b) to the Commissioner of Police.

[Rule 71E inserted: Gazette 17 Jun 2011 p. 2155.]


Miscellaneous Part 10

r. 71F


Part 10 — Miscellaneous

71F. Term used: court record

In this Part —

court record in respect of a case, means —

(a) any record or thing held by the Court in respect of the

case; and

(b) the transcript of proceedings in the case before the

Court.

[Rule 71F inserted: Gazette 31 Dec 2013 p. 6554-5.]

71. Access to records and things (registry)

(1) This rule does not apply to searches for, and inspections of,

Court documents and information using the website called the

eCourts Portal of Western Australia.

(1A) Any person is entitled, on payment of the prescribed fee, to

search for, inspect and receive a copy of any of the following

Court documents or information in a case —

(a) the identity of the parties to a case;

(b) the identity of the parties’ lawyers;

(c) the date on which the case commenced;

(d) the date and time of a hearing in the case;

(e) a writ and the statement of claim (if any) endorsed on it

under the RSC Order 6 rule 3;

(f) an index of documents filed in a registry;

(g) a judgment or order of the Court.

(1B) Subrule (1A) does not apply in relation to any document filed,

or any judgment or order made, in any proceedings under the

Surveillance Devices Act 1998.

(2) An application made under subrule (3), (5) or (6) must be in

writing and set out the grounds of the application.


Part 10 Miscellaneous

r. 71


(2a) After receiving an application made under subrule (3), (5) or (6)

the Court may, in writing, direct the applicant to provide

additional information in the form of an affidavit.

(2b) The Court is not required to deal with an application if the

applicant fails to comply with a direction under subrule (2a).

(3) A person may apply to the Court for an order that prohibits or

restricts access to, or the publication or possession of, all or any

part of the court record in respect of a case by a person or class

of persons.

(4) A party to a case is entitled, at no charge, to inspect and obtain a

copy of any part of the court record in respect of the case other

than the transcript.

(5) A party to a case whose access to any part of the court record in

respect of the case is restricted may apply to the Court for

permission to inspect or obtain a copy of it.

(6) A person who is not a party to a case may apply to the Court for

permission to inspect or obtain a copy of all or a part of the

court record not referred to in subrule (1A) in respect of the

case.

(7) The Court may grant an application made under subrule (5)

or (6) if satisfied —

(a) the applicant has sufficient cause to inspect or obtain the

record in question; and

(b) that access to or possession of the record by the

applicant would be lawful.

(8) An order made on an application made under subrule (5) or (6)

may include —

(a) an order that the applicant pay or make arrangements to

pay the cost of supplying any copy of a court record;

(b) conditions on which the applicant may inspect or obtain

a copy of court record.


Miscellaneous Part 10

r. 72


(9) The Court may determine the cost of making and supplying a

copy of a court record.

(10) This rule does not entitle a person to search, inspect or obtain

information, including a copy of any part of a document that

contains information, that the person is prevented by a written

law, an order made under a written law, or an order of a court

from possessing.


p. 6266-7; 31 Dec 2013 p. 6555; 16 Mar 2018 p. 921;

7 Sep 2018 p. 3191.]

72. Access to records and things (eCourts Portal of Western

Australia)

(1) This rule applies to searches for, and inspections of, Court

documents and information using the website called the eCourts

Portal of Western Australia.

(2) A registered user is entitled to search for, and inspect electronic

copies of, any of the following Court documents or information

in a case, whether or not the registered user is a party to the

case —

(a) the identity of the parties to a case;

(b) the identity of the parties’ lawyers;

(c) the date on which the case commenced;

(d) the date and time of a hearing in the case;

(e) an index of documents filed in a registry.

(3) A registered user who is a party to the case is entitled to search

for, and inspect electronic copies of, any of the following Court

documents or information in that case —

(a) documents filed electronically;

(b) judgments or orders made by the Court.

(4) This rule does not entitle a person to search, inspect or obtain

information, including a copy of any part of a document that


Part 10 Miscellaneous

r. 72


contains information, that the person is prevented by a written

law, an order made under a written law or an order of a court

from possessing.

[Rule 72 inserted: Gazette 31 Dec 2013 p. 6555-6; amended:

Gazette 16 Mar 2018 p. 921.]


Transitional and savings provisions Part 11

r. 73


Part 11 — Transitional and savings provisions


73. Terms used

In this Part —

commencement means the coming into operation of the District

Court Amendment Rules 2007;

former rules means the District Court Rules 2005 as enacted

before being amended by the District Court Amendment

Rules 2007.


74. Cases to which former rules apply

If immediately before the commencement a case is listed for

trial or the trial of a case is being conducted, then the former

rules apply to and in respect of the case.


75. Outline of submissions for certain hearings

If immediately before the commencement —

(a) a judge or a registrar has ordered under rule 61(2) that a

hearing of an application is to be subject to rule 61; and

(b) the hearing has not been held but is due to be held within

7 days,

then rule 61(1), (5) and (6) of the former rules applies to and in

respect of the hearing.



Schedule 1 Forms

Form 1AA


Schedule 1 — Forms

[r. 3]

1AA. Memorandum of appearance (r. 22A)

District Court of Western Australia

Held at Perth 1

Action No:

Memorandum of appearance

Parties Plaintiff

Defendant

Enter an appearance for the *Defendant/Third party/

*delete inapplicable or add further party title

Date of filing

Disclosure pursuant to RSC Order 9A

Identity of any person

who is an interested

non-party

(If applicable: see Rules

of the Supreme

Court 1971 Order 9A

rule 2 and District Court

Rules 2005 rule 22A(3))

Service and contact details

Geographical address

of party

(Must be provided unless

otherwise ordered by the

Court: see Rules of the

Supreme Court 1971

Order 71A rule 2 and


rule 22C)


Forms Schedule 1

Form 1AA


Name of lawyer

(If one has been

appointed)

Postal address for

service of documents

(Must be provided)

Email address

(Optional — if provided,

may be used for service

of documents)

Fax number



of documents)

Telephone number

Reference

Signature of party or

lawyer

Party/lawyer

Date of signing:

Note to Form 1AA —

1. If not held at Perth, state the location of the relevant registry.

[Form 1AA inserted: Gazette 26 Jul 2013 p. 3417-18; amended:

Gazette 31 Dec 2013 p. 6556.]

[Form 1AB deleted: Gazette 7 Sep 2018 p. 3191.]


Schedule 1 Forms

Form 1A


1A. Affidavit (r. 23A)


Held at Perth 1A

Appeal No:

Affidavit 1

Parties

Person making

affidavit

Date of filing

Date made

Purpose 2

Filed by [Party]

Index 3 Contents Page

1. Affidavit of Vincent van Gogh

2. Attachment VVG 1–M J Citizen’s birth

certificate

3. Attachment VVG 2–Letter from J Smith

to T Jones dated 3 March 1999

1

7

8

Page 1 4

I, [name, address and occupation of person making the affidavit],

[insert words of oath or affirmation in accordance with the Oaths, Affidavits

and Statutory Declarations Act 2005] as follows —

1. [insert content of affidavit in numbered paragraphs]

2.

This affidavit is [sworn/affirmed] by [name of person making the affidavit] in

the presence of an authorised witness at [place] on [date].

[Signature of person making the affidavit]

[Signature of authorised witness]

Authorised witness

[Name of authorised witness]

[Qualification of authorised witness] 5

Notes to Form 1A —

1A. If not held at Perth, state the location of the relevant registry.

1. The affidavit must comply with the RSC Order 37.


Forms Schedule 1

Form 1A


2. Example: To support summons by plaintiff dated 1 May 2010 for

summary judgment.

3. The index must comply with the RSC Order 37 rule 2(7). Form 1A

contains in italics an example of an index.

4. Page 1 must be on a separate sheet of paper from the above.

5. The Oaths, Affidavits and Statutory Declarations Act 2005 Part 3 sets out

the requirements for affidavits and who are authorised witnesses for

affidavits.

[Form 1A inserted: Gazette 17 Jun 2011 p. 2156; amended: Gazette

26 Jul 2013 p. 3420.]


Schedule 1 Forms

Form 1B


1B. Originating summons (r. 23B)


Held at Perth 1

Application No:

Originating summons

Parties Applicant

Respondent

Date of filing

Act or rule that

allows the

application 2

Summons

You, [respondent] of [respondent’s address], are required to attend before

the Court on the date set out in this summons for the hearing of an

application that:

1.

2.

3.

4.

5.

Hearing date 3 Date:

Time:

Place: District Court Building, 500 Hay Street, Perth 1

Notice to the

respondent

If you do not attend before the Court on the date set

out in this summons, the Court may make such orders

as it considers just and expedient in your absence.


Forms Schedule 1

Form 1B


If you wish to be heard on this application, you must

file a Form 1AA (Memorandum of appearance) under

the District Court Rules 2005 before, or on, the date

set out in this summons.

Applicant’s contact and service details

Geographical

address of

applicant

(Must be provided

unless otherwise

ordered by the

Court: see Rules of

the Supreme Court

1971 Order 71A

rule 2 and District

Court Rules 2005

rule 22C)

Name of lawyer

(If one has been

appointed)

Postal address for

service of

documents

(Must be provided)

Email address

(Optional — if

provided, may be

used for service of

documents)

Fax number

(Optional — if

provided, may be

used for service of


Schedule 1 Forms

Form 1B


documents)

Telephone number

Reference

Signature of

applicant or lawyer

Applicant/lawyer

Date of signing:

Notes to Form 1B —


2. State the name of the Act or rules and section or rule number under which

the application is being made.

3. The Court will complete this row when the originating summons is filed.

[Form 1B inserted: Gazette 31 Dec 2013 p. 6557-8.]


Forms Schedule 1

Form 1C


1C. Notification of contact and service information (r. 23C)


Held at Perth 1

Application No:

Notification of contact and

service information

Parties Applicant

Respondent

Date of filing

Service and contact details

Geographical

address of

applicant

(Must be provided

unless otherwise

ordered by the Court:

see Rules of the

Supreme Court 1971


District Court

Rules 2005 rule 22C)

Name of lawyer

(If one has been

appointed)

Postal address for

service of

documents

(Must be provided)


Schedule 1 Forms

Form 1C


Email address

(Optional — if

provided, may be

used for service of

documents)

Fax number

(Optional — if

provided, may be

used for service of

documents)

Telephone number

Reference

Signature of

applicant or lawyer

Party/lawyer

Date of signing:

Note to Form 1C —


[Form 1C inserted: Gazette 31 Dec 2013 p. 6558-9.]


Forms Schedule 1

Form 1


1. Entry for trial (r. 37)


Held at Perth 1

Action No:

Entry for trial

Matter [Names of all parties]

Date of filing

Certificate The [party] certifies that —

● each party has given discovery to, and permitted

inspection by, each other party;

● all requests for answers to interrogatories have

been answered or validly objected to (delete if

inapplicable);

● each party has complied with all case management

directions and orders made by the Court;

● the [party] does not require any other interlocutory

orders to be made;

● the [party] has complied with Part 5A;

● the [party] has complied with the District Court

Rules 2005 rule 36(1);


Rules 2005 rule 45C;


Rules 2005 rule 45D (delete if inapplicable).

Entry for trial The [party] enters this matter for trial.

Has the

requirement to

attend a

pre-trial

conference

been dispensed


Schedule 1 Forms

Form 1


with? 2

Unavailable

dates

The parties are not available for a pre-trial conference on

these dates:

Date of

pre-trial

conference /

directions

hearing /

listing

conference 3

Date:

Time:

Place: District Court Building, 500 Hay Street, Perth 1

Information

about the

pre-trial

conference

All parties are required to attend the pre-trial conference in

person accompanied by their respective lawyers. Where a

party is a body corporate it must attend by an agent who is

authorised by the body corporate to conduct settlement

negotiations and settle the case.

At the pre-trial conference, the parties must, in good faith,

attempt to settle the case or, failing settlement, to resolve as

many of the issues between them as possible and to identify

the issues to be tried.

If the action is settled before the pre-trial conference please

immediately notify the Court that this has occurred.

Contact details

of party or

lawyer

Name

Firm

Address

Phone Fax

Email

Referenc

e

Date of signing:


Forms Schedule 1

Form 2


Signature of

person making

this

certification

Name of person making this

certification

Notes to Form 1 —


2. If it has, specify the date of the order.

3. The Court will complete this row when the entry for trial notice is filed. If

a listing conference or directions hearing has already been allocated, insert

this information into the hearing details.

[Form 1 inserted: Gazette 31 Dec 2013 p. 6560-1; amended: Gazette

7 Sep 2018 p. 3191.]

2. Notice of default (entry for trial) (r. 38)


Held at Perth 1

Action No:

Notice of default (entry for trial)


Notice to all

parties The plaintiff has not entered this action for trial as

required.

Unless the plaintiff enters this action for trial on or

before [date], this action will become inactive.

Despite the above, any party other than the plaintiff

may now enter this action for trial, and may do so even

if the action has become inactive.

Seal of Court

Date:

Note to Form 2 —


[Form 2 amended: Gazette 26 Jul 2013 p. 3421.]


Schedule 1 Forms

Form 3


3. Outline of submissions (r. 45H, 61)


Held at Perth 1

Action No:

Outline of submissions


Party filing

outline

[Name of party filing outline and whether plaintiff or

defendant, appellant or respondent]

Date of filing

Notice

*Delete if

inapplicable

Attached to this form are these documents in this order —

• Submissions; and

• Legal authorities; and

• *List of orders wanted; and

• *Draft chronology.

Signature of

party or lawyer

..................................................

Party/[Party’s] lawyer

Date:

Note to Form 3 —


[Form 3 inserted: Gazette 31 Jul 2007 p. 3822; amended: Gazette

26 Jul 2013 p. 3422.]


Forms Schedule 1

Form 4A


4A. Subpoena to attend to give evidence (r. 48AB)


Held at Perth 1

Action No:

Subpoena to attend to give

evidence

Parties Plaintiff

Defendant

To:

[Full name

and address of

addressee]

Warning Failure to comply with this subpoena without lawful

excuse is a contempt of court and may result in your

arrest.

Notes

Please read the information in the Notice to addressee

(Form 4B) which accompanies this subpoena.

Date of issue Last date for service

Order You are ordered to attend to give evidence on the date, and at

the time and place, specified below unless you receive notice

in writing of a later date or time from the issuing party, in

which case the later date or time is substituted:

Date:

Time:

Place:

You must continue to attend from day-to-day unless excused

by the Court or the person authorised to take evidence in this

proceeding or until the hearing of the matter is completed.

Issuing details Issued at the request of [name of party],

whose service details are:

Seal of the

Court

Note to Form 4A —


[Form 4A inserted: Gazette 26 Jul 2013 p. 3422-3.]


Schedule 1 Forms

Form 4B


4B. Subpoena notice — evidence (r. 48AB)


Held at Perth 1

Action No:

Subpoena notice — evidence

Parties Plaintiff

Defendant

Notice to addressee

Contempt of court — arrest

1. Attached to this notice is a subpoena issued by the District Court of

Western Australia, requiring you to attend Court to give evidence.

Failure to comply with a subpoena without lawful excuse is a contempt

of court and may be dealt with accordingly.

2. Note 1 does not limit any power of the Court, under any rules of the

Court (including any rules of the Court providing for the arrest of an

addressee who fails to attend in accordance with a subpoena) or

otherwise, to enforce compliance with a subpoena.

Last day of service

3. You need not comply with the subpoena unless it is served on you on or

before the date specified in the subpoena as the last date for service of

the subpoena.

Informal service

4. Even if this subpoena has not been served personally on you, you must,

nevertheless, comply with its requirements, if you have, by the last date

for service of the subpoena, actual knowledge of the subpoena and of its

requirements.

Conduct money

5. You need not comply with it unless conduct money sufficient to meet

your reasonable expenses of attending as required by the subpoena is

handed or tendered to you a reasonable time before the date on which

your attendance is required.


Forms Schedule 1

Form 4B


Losses or expenses incurred in compliance

6. If you are not a party to the proceeding, you may apply to the Court for

an order that the issuing party pay an amount (in addition to conduct

money and any witness’s expenses) in respect of the loss or expense,

including legal costs, reasonably incurred in complying with the

subpoena.

Note to Form 4B —


[Form 4B inserted: Gazette 26 Jul 2013 p. 3423-5.]


Schedule 1 Forms

Form 4C


4C. Subpoena to produce documents (r. 48AB)


Held at Perth 1

Action No:

Subpoena to produce

Parties Plaintiff

Defendant

To:

[Full name

and address of

addressee]

Warning Failure to comply with this subpoena without lawful

excuse is a contempt of court and may result in your

arrest.

Notes

Please read the information in the Notice to addressee

(Form 4D or Form 4E as applicable) which accompanies this

subpoena.

Date of issue Last date for service

Date of

production

The date applies unless you receive notice in writing of a later

date or time from the issuing party, in which case the later

date or time is substituted.

Order You must comply with this subpoena —

(a) by attending to produce this subpoena (or a copy of it),

the completed declaration (Form 4D or Form 4E as

applicable) and the documents or things specified in

the Schedule below on the date of production:

Place: District Court of Western Australia

500 Hay Street

Perth, Western Australia 2

OR


Forms Schedule 1

Form 4C


(b) by delivering or sending this subpoena (or a copy of it),

the completed declaration (Form 4D or Form 4E as

applicable) and the documents or things specified in

the Schedule below to the registrar at the address

below, so that they are received not less than 2 clear

days before the date of production:

The Registrar


500 Hay Street

PERTH WA 6000 2

Schedule

[If insufficient

space attach

list]

The documents or things you must produce are as follows:

Issuing details Issued at the request of [name of party],

whose service details are:

Seal of the

Court

Notes to Form 4C —


2. If the documents or things are to be produced to a registry other than at

Perth, state the address of the relevant registry.

[Form 4C inserted: Gazette 26 Jul 2013 p. 3425-6.]


Schedule 1 Forms

Form 4D


4D. Subpoena notice and declaration — documents or things

(r. 48AG)


Held at Perth 1

Action No:

Subpoena notice — documents

or things

Parties Plaintiff

Defendant

Notice to addressee

(To a health professional, hospital or person that manages the records of a

health professional)



Western Australia, requiring you to produce documents (or things) as

described to the Court on or before the date indicated (the return date).







Attached declaration in relation to copies

3. At the same time as complying with the subpoena, you are also required

to complete the declaration at the end of this notice and attach it to the

subpoena or copy of the subpoena that accompanies the documents or

things produced to the Court under the subpoena.

Last day for service



the subpoena.


Forms Schedule 1

Form 4D


Informal service




requirements.

Addressee a corporation

6. If the subpoena is addressed to a corporation, the corporation must

comply with the subpoena by its appropriate or proper officer.

Production of subpoena or copy of it and documents or things by delivery

or post

7. Instead of attending to produce the subpoena or a copy of it and the

documents or things, you may comply with the subpoena by delivering

or sending the subpoena or a copy of it and the documents or things to

the registrar at the address specified in the subpoena for the purpose, so

that they are received not less than 2 clear days before the date specified

in the subpoena for attendance and production or, if you receive notice of

a later date or time from the issuing party, before that later date or time.

Production of copy instead of original

8. Unless the subpoena specifically requires production of the original of a

document, you may comply with the subpoena by producing a copy of

the document.

9. The copy of a document may be:

(a) a photocopy; or

(b) in PDF format on a CD-ROM or DVD.

Production of a number of documents or things

10. If you produce more than one document or thing, you must, if requested

by the registrar, produce a list of the documents or things produced.

Inspection and copying

11. Unless the Court otherwise orders, the following will apply to the

documents and things produced —

(a) the plaintiff will be permitted to inspect and copy the

subpoenaed documents as soon as they are received by the

Court; and


Schedule 1 Forms

Form 4D


(b) the other parties will be permitted to inspect the documents at

any time after 7 days from the date on which production is due

under the subpoena and, with the approval of a registrar, copy

the documents.

12. Each party who copies the documents produced must give an

undertaking to the Court not to use the document otherwise than for the

purpose of the action.

Objections

13. If you object to a document or thing produced in response to this

subpoena being inspected by a party to the proceeding or any other

person, you must, at the time of production, notify the Principal

Registrar in writing of your objection and of the grounds of your

objection.

14. If your objection relates to timeframes and/or access, any dispute may be

resolved by way of correspondence with a registrar.

15. If your objection raises substantive issues concerning the ambit of the

subpoena, for example claims of privilege, these will be referred for

determination by the Court.

16. You have the right to apply to the Court —

(a) for an order setting aside the subpoena (or a part of it) or for

relief in respect of the subpoena; and

(b) for an order with respect to your claim for privilege, public

interest immunity or confidentiality in relation to any document

or thing to which the subpoena applies.

Losses or expenses incurred in compliance 2

17. When you were served with the subpoena, you also received the amount

of $80 for your reasonable losses or expenses incurred in complying with

the subpoena. The receipt of this amount does not affect your right to

apply to the Court for a higher amount to be fixed. If you wish to claim

that your reasonable costs of compliance are higher than $80, you should

make a claim in writing to the issuing party. If you are not able to

resolve your claim with the issuing party, you should send a copy of

your claim and any other relevant correspondence to the Principal

Registrar. The Principal Registrar will make arrangements for your

claim to be assessed by the Court.


Forms Schedule 1

Form 4D



Held at Perth 1

Action No:

Subpoena declaration

Parties Plaintiff

Defendant

Declaration by addressee

You are required to:

• Tick the relevant option below.

• If originals are to be returned, provide your address as appropriate.

• Sign and date the declaration.

• Attach the declaration to the subpoena or copy of the subpoena that

accompanies the documents produced to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Court

may, without further notice to you, destroy the copies after the expiry of

4 months from the conclusion of the proceeding or, if the documents become

exhibits in the proceeding, when they are no longer required in connection

with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document,

the Court will return all of the material to you at the address specified by you

in the declaration below. Unless the Court otherwise directs, these documents

will be returned to you after the expiry of 28 days from the date on which

production is due under the subpoena.

All of the material I am providing to the Court in compliance with the

attached subpoena is copies of documents. I acknowledge that the

Court may destroy the copies once they are no longer required, without

further notice to me.


Schedule 1 Forms

Form 4D


Some or all of the material I am providing to the Court in compliance

with the attached subpoena is an original document. Once the material

is no longer required, all of the material should be returned to me at the

following address:

..............................................................................................................

..............................................................................................................

........................................................

[Signature of addressee]

........................................................

[Name of addressee]

........................................................

[Date]

Notes to Form 4D —


2. If District Court Rules 2005 rule 48AH(2) does not apply because

the Court has ordered, or the issuing party and the addressee have

agreed, otherwise, item 17 must be amended to reflect the order or

agreement.

[Form 4D inserted: Gazette 26 Jul 2013 p. 3427-31.]


Forms Schedule 1

Form 4E


4E. Subpoena notice and declaration — documents or things

(r. 48AG)


Held at Perth 1

Action No:

Subpoena notice — documents

or things

Parties Plaintiff

Defendant

Notice to addressee

(Other than a health professional, hospital or person that manages the records

of a health professional)



Western Australia, requiring you to produce documents (or things) as

described to the Court on or before the date indicated (the return date).







Attached declaration in relation to copies

3. At the same time as complying with the subpoena, you are also required

to complete the declaration at the end of this notice and attach it to the

subpoena or copy of the subpoena that accompanies the documents

produced to the Court under the subpoena.

Last day for service



the subpoena.


Schedule 1 Forms

Form 4E


Informal service




requirements.

Addressee a corporation

6. If the subpoena is addressed to a corporation, the corporation must

comply with the subpoena by its appropriate or proper officer.

Production of subpoena or copy of it and documents or things by delivery

or post

7. Instead of attending to produce the subpoena or a copy of it and the

documents or things, you may comply with the subpoena by delivering

or sending the subpoena or a copy of it and the documents or things to

the registrar at the address specified in the subpoena for the purpose, so

that they are received not less than 2 clear days before the date specified

in the subpoena for attendance and production or, if you receive notice of

a later date or time from the issuing party, before that later date or time.

Production of copy instead of original

8. Unless the subpoena specifically requires production of the original of a

document, you may comply with the subpoena by producing a copy of

the document.

9. The copy of a document may be —

(a) a photocopy; or

(b) in PDF format on a CD-ROM or DVD.

Production of a number of documents or things

10. If you produce more than one document or thing, you must, if requested

by the registrar, produce a list of the documents or things produced.

Inspection and copying

11. Unless the Court otherwise orders (for example, if an objection is made),

the following will apply to the documents and things produced —

(a) all parties to the action are permitted to inspect the documents

and things immediately upon production; and


Forms Schedule 1

Form 4E


(b) all parties to the action are permitted, with the approval of a

registrar, to copy the documents.

12. Each party who copies the documents produced must give an

undertaking to the Court not to use the document otherwise than for the

purpose of the action.

Objections

13. If you object to a document or thing produced in response to this

subpoena being inspected by a party to the proceeding or any other

person, you must, at the time of production, notify the Principal

Registrar in writing of your objection and of the grounds of your

objection.

14. If your objection relates to timeframes and/or access, any dispute may be

resolved by way of correspondence with a registrar.

15. If your objection raises substantive issues concerning the ambit of the

subpoena, for example claims of privilege, these will be referred for

determination by the Court.

16. You have the right to apply to the Court —

(a) for an order setting aside the subpoena (or a part of it) or for

relief in respect of the subpoena; and

(b) for an order with respect to your claim for privilege, public

interest immunity or confidentiality in relation to any document

or thing to which the subpoena applies.

Losses or expenses incurred in compliance 2

17. When you were served with the subpoena, you also received the amount

of $80 for your reasonable losses or expenses incurred in complying with

the subpoena. The receipt of this amount does not affect your right to

apply to the Court for a higher amount to be fixed. If you wish to claim

that your reasonable costs of compliance are higher than $80, you should

make a claim in writing to the issuing party. If you are not able to

resolve your claim with the issuing party, you should send a copy of

your claim and any other relevant correspondence to the Principal

Registrar. The Principal Registrar will make arrangements for your

claim to be assessed by the Court.


Schedule 1 Forms

Form 4E



Held at Perth 1

Action No:

Subpoena declaration

Parties Plaintiff

Defendant

Declaration by addressee

You are required to:

• Tick the relevant option below.

• If originals are to be returned, provide your address as appropriate.

• Sign and date the declaration.

• Attach the declaration to the subpoena or copy of the subpoena that

accompanies the documents produced to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Court

may, without further notice to you, destroy the copies after the expiry of

4 months from the conclusion of the proceeding or, if the documents become

exhibits in the proceeding, when they are no longer required in connection

with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document,

the Court will return all of the material to you at the address specified by you

in the declaration below. Unless the Court otherwise directs, these documents

will be returned to you at the expiry of 28 days from the date on which

production is due under the subpoena.

All of the material I am providing to the Court in compliance with the

attached subpoena is copies of documents. I acknowledge that the

Court may destroy the copies once they are no longer required, without

further notice to me.


Forms Schedule 1

Form 4E


Some or all of the material I am providing to the Court in compliance

with the attached subpoena is an original document. Once the material

is no longer required, all of the material should be returned to me at the

following address:

..............................................................................................................

..............................................................................................................

........................................................

[Signature of addressee]

........................................................

[Name of addressee]

........................................................

[Date]

Notes to Form 4E —


2. If District Court Rules 2005 rule 48AH(2) does not apply because

the Court has ordered, or the issuing party and the addressee have

agreed, otherwise, item 17 must be amended to reflect the order or

agreement.

[Form 4E inserted: Gazette 26 Jul 2013 p. 3431-5.]


Schedule 1 Forms

Form 4


4. Prohibited Behaviour Orders Act 2010 s. 5 application (r. 71B)


Held at Perth 1A

Prohibited Behaviour Orders Act 2010 s. 5

Action No:

Application for prohibited

behaviour order.

Hearing notice

Applicant

Respondent

Date of filing

Application The applicant applies under the Prohibited Behaviour

Orders Act 2010 section 5 for a prohibited behaviour

order (PBO) against the respondent.

Proposed PBO The applicant applies for the following constraints in the

PBO against the respondent —

1.

The applicant applies for the PBO for a period of [state

period]. 1

Signature of

applicant or

lawyer

Applicant/Applicant’s lawyer

Date:

Hearing details 2 This application will be heard at this date,

time and place —

Date: Time:

Place:

Court seal:

Notes to Form 4 —


1. The period stated here must comply with the Prohibited Behaviour Orders

Act 2010 s. 12.

2. The Court will complete this row when the application is submitted.

[Form 4 inserted: Gazette 17 Jun 2011 p. 2156-7; amended: Gazette

26 Jul 2013 p. 3435-6.]


Forms Schedule 1

Form 5


5. Prohibited Behaviour Orders Act 2010 s. 21 application (r. 71C)


Held at Perth 1A

Prohibited Behaviour Orders Act 2010 s. 21

Action No:

Application to vary or

cancel prohibited

behaviour order.

Hearing notice

PBO’s details Date made:

Constrained person:

Applicant

Respondent

Date of filing

Application The applicant applies under the Prohibited Behaviour

Orders Act 2010 section 21 to 1 vary/cancel the above

PBO (prohibited behaviour order).

Variation(s)

wanted 2

1.

Grounds for

application 3

1.

Signature of

applicant

or lawyer


Date:

Hearing details 4 This application will be heard at this date,

time and place —

Date: Time:

Place:

Court seal:

Notes to Form 5 —


1. Delete the inapplicable.

2. Omit this row if the application is to cancel a PBO.

3. Set out the grounds in numbered paragraphs.

4. The Court will complete this row when the application is filed.

[Form 5 inserted: Gazette 17 Jun 2011 p. 2157; amended: Gazette

26 Jul 2013 p. 3436.]


Schedule 1 Forms

Form 6


6. Appeal notice (r. 51(1))


Held at Perth 1

Appeal No:

Appeal notice

Parties Appellant

Respondent

Primary court’s decision

Primary court

Case number

Parties

Date of decision

Judicial officer

Decision details 2

Appeal details

Notice of appeal The appellant appeals to the District Court against the

above decision.

Grounds of

appeal 3

1.

Acts that allows

appeal 4

section:

Notice to the

respondent 5

If you want to take part in this appeal you must file a

Form 8 (attached) under the District Court Rules 2005

within 21 days after the date on which you are served

with this notice and serve it on the appellant.

If you file a Form 8 you must attend a directions hearing

at the time and place stated below.

Last date for

appealing

Last date:

Is an extension of time needed? Yes/No

Date of filing

Directions

hearing 6

Date: Time:

Place:


Forms Schedule 1

Form 6


Appellant’s service details

Geographical address

of appellant

(Must be provided unless

otherwise ordered by the

Court: see Rules of the

Supreme Court 1971


District Court


Name of lawyer

(If one has been

appointed)

Postal address for

service of documents

(Must be provided)

Email address



of documents)

Fax number



of documents)

Telephone number

Reference

Signature of appellant

or lawyer

Appellant/Appellant’s lawyer

Date:

Notes to Form 6 —


2. Examples:

• Judgment against the defendant for $40 000.

• Dismissal of claim to recover possession of real property.


Schedule 1 Forms

Form 6



4. State the short title of the Act under which the appeal is being made.

5. A copy of Form 8 (Notice of respondent’s intention) must be attached to

this form when it is served on the respondent.

6. The Court will complete this row when the appeal notice is filed.

[Form 6 inserted: Gazette 26 Jul 2013 p. 3437-9.]


Forms Schedule 1

Form 7


7. Service certificate (r. 51(7))


Held at Perth 1A

Appeal No:

Service certificate

Parties Appellant

Respondent

Date of filing

Certificate 1 I certify that on [date] at [place] [name of server]

served the respondent personally with these

documents —

● a copy of an appeal notice dated [date]/appeal

notice (WCIMA appeal) dated [date] 2;

● a copy of every other document that was filed

with the appeal notice;

● a copy of Form 8 (Notice of respondent’s

intention).

I undertake to file an affidavit of service if the Court

requires me to.

Signature of

appellant or

lawyer


Date:

Note to Form 7 —


1. If the documents were posted to the superintendent of the prison in which

the respondent is imprisoned, modify this certificate to say when they were

posted and to which prison.

2. Strike out whichever is inapplicable.


18 Nov 2011 p. 4815; 26 Jul 2013 p. 3439.]


Schedule 1 Forms

Form 8A


8A. Appeal notice (WCIMA appeal) (r. 51(4A))


Held at Perth 1

Appeal No:

Appeal notice (WCIMA

appeal)

Parties Appellant

Respondent

Primary court’s decision

Primary court

Case number

Parties

Date of decision

Arbitrator

WorkCover WA Arbitration Service

Decision details 2

Appeal details

Notice of appeal The appellant applies for leave to appeal to the District

Court against the above decision.

Act that allows

appeal

Workers’ Compensation and Injury Management

Act 1981 (WCIMA) section 247.

Question of law 3

Amount in issue 4

Grounds of appeal 5 1.

Decision sought 6 1.

Leave The appellant applies for leave to appeal under

WCIMA section 247 on the ground that: 7

Other orders The appellant also seeks orders that: 8


Forms Schedule 1

Form 8A


Notice to the

respondent 9

If you want to take part in this appeal you must file a

Form 8 (attached) under the District Court Rules 2005

within 21 days after the date on which you are served

with this notice and serve it on the appellant.

If you file a Form 8 you must attend a directions

hearing at the time and place stated below.

Last date for

appealing

Last date:

Date of filing

Directions hearing 10

Date: Time:

Place:

Appellant’s details for service

Geographical

address of appellant

(Must be provided

unless otherwise


see Rules of the

Supreme Court 1971


District Court


Name of lawyer

(If one has been

appointed)

Postal address for

service of

documents

(Must be provided)

Email address

(Optional — if

provided, may be

used for service of

documents)


Schedule 1 Forms

Form 8A


Fax number

(Optional — if

provided, may be

used for service of

documents)

Telephone number

Reference

Signature of

appellant or lawyer


Date:

Notes to Form 8A —


2. Examples:

• Determination of liability in favour of the respondent.

• Dismissal of application seeking determination of liability.

• Orders for cessation/reduction of weekly payments.

• Orders for recovery of payments made.

3. Specify question(s) of law the subject of the appeal.

4. This is the amount that will be used to determine whether leave is able to

be granted under WCIMA section 247.


6. See rule 51(4B)(c).

7. Specify subsection(s) under which the application is made. The grounds

for leave should be in numbered paragraphs.

8. For example, to adduce fresh or further evidence under WCIMA

section 247(6) or a stay under section 250(1).

9. A copy of Form 8 (Notice of respondent’s intention) must be attached to

this form when it is served on the respondent.

10. The Court will complete this row when the appeal notice (WCIMA appeal)

is filed.

[Form 8A inserted: Gazette 26 Jul 2013 p. 3440-2.]


Forms Schedule 1

Form 8


8. Notice of respondent’s intention (r. 53)


Held at Perth 1

Appeal No:

Notice of respondent’s intention

Parties Appellant

Respondent

Notice

[Tick one box]

2 The respondent intends to take part in this

appeal.

3 The respondent does not intend to take part in

this appeal and will accept any order made by

the Court in the appeal other than as to costs.

Grounds for

upholding

The respondent will argue the primary court’s

decision should be upheld on the grounds relied

on by the primary court in its decision.

Other grounds for

upholding 4


decision should be upheld on the following

grounds, not relied on by the primary court in its

decision:

1.

Variation 4 The respondent applies for the primary court’s

decision to be varied as follows —

1.


decision should be varied on the following

grounds:

1.

Cross-appeal 4 The respondent also appeals against the primary

court’s decision and will rely on the following

grounds:

1.

Other orders The respondent also seeks order that: 5


Schedule 1 Forms

Form 8


Last date for

appealing 6

Last date:

Is an extension of time needed? Yes/No

Date of filing

Respondent’s details for service

Geographical

address of

respondent

(Must be provided

unless otherwise


see Rules of the

Supreme Court 1971


District Court


Name of lawyer

(If one has been

appointed)

Postal address for

service of

documents

(Must be provided)

Email address

(Optional — if

provided, may be

used for service of

documents)

Fax number

(Optional — if

provided, may be

used for service of

documents)

Telephone number

Reference


Forms Schedule 1

Form 8


Signature of

respondent or

lawyer

Respondent/Respondent’s lawyer

Date:

Notes to Form 8 —

1. If not held at Perth, state the relevant registry.

2. If this box is ticked, complete one or more of the next 5 rows and the

respondent’s details for service.

3. If this box is ticked, ignore the next 5 rows and complete the respondent’s

details for service.


5. For possible orders see rule 57(2).

6. Complete this only if the respondent also appeals against the primary

court’s decision.

[Form 8 inserted: Gazette 26 Jul 2013 p. 3442-5.]


Schedule 1 Forms

Form 9


9. Application in an appeal (r. 58A)


Held at Perth 1A

Appeal No:

Application in an appeal

Parties Appellant

Respondent

Date of filing

Applicant Appellant/Respondent

Application 1 The applicant applies for —

Conference between

parties

[Tick one box]

The parties to this application have conferred

about the issues giving rise to this application

and have not resolved them.

The parties to this application have not

conferred about the issues giving rise to this

application because —

2

Signature of applicant

or lawyer


Date:

Notes to Form 9 —

1A. If not held at Perth, state the relevant registry.

1. State —

• the order or orders sought; and

• the written law and provision under which the application is made.

2. State the reasons why the parties have not conferred.

[Form 9 inserted: Gazette 17 Jun 2011 p. 2167-8; amended: Gazette

26 Jul 2013 p. 3445.]


Forms Schedule 1

Form 10


10. Consent notice (r. 58B)


Held at Perth 1

Appeal No:

Consent notice

Parties Appellant

Respondent

Date of filing

Consent We consent to the following order being made —

Signature of

appellant or

lawyer


Date:

Signature of

respondent or

lawyer

Respondent/Respondent’s lawyer

Date:

Note to Form 10 —



26 Jul 2013 p. 3445-6.]

11. Discontinuance notice (r. 58)


Held at Perth 1

Appeal No:

Discontinuance notice

Parties Appellant

Respondent

Date of filing

Notice The appellant discontinues this appeal.

Signature of

appellant or

lawyer


Date:

Note to Form 11 —



26 Jul 2013 p. 3446.]


Notes Compilation table


Notes This is a compilation of the District Court Rules 2005 and includes amendments made

by other written laws. For provisions that have come into operation, and for information

about any reprints, see the compilation table.

Compilation table

Citation Published Commencement

District Court Rules 2005 27 May 2005

p. 2335-92

30 May 2005 (see r. 2)

District Court Amendment Rules 2005 23 Dec 2005

p. 6270-3

1 Jan 2006 (see r. 2)

District Court Amendment Rules 2007 31 Jul 2007

p. 3807-22

31 Jul 2007

District Court Amendment Rules 2010 10 Dec 2010

p. 6264-8

r. 1 and 2: 10 Dec 2010

(see r. 2(a));

Rules other than r. 1 and 2:

1 Jan 2011 (see r. 2(b))

District Court Amendment Rules 2011 17 Jun 2011

p. 2153-8

r. 1 and 2: 17 Jun 2011

(see r. 2(a));


18 Jun 2011 (see r. 2(b))

District Court Amendment Rules

(No. 2) 2011

17 Jun 2011

p. 2158-68

r. 1 and 2: 17 Jun 2011

(see r. 2(a));


1 Jul 2011 (see r. 2(b))

Reprint 1: The District Court Rules 2005 as at 19 Aug 2011 (includes amendments listed

above)


(No. 3) 2011

18 Nov 2011

p. 4811-18

r. 1 and 2: 18 Nov 2011

(see r. 2(a));

Rules other than r. 1, 2, 6-8, 9(1)

and (2), 10-12, 13(3)-(7): 19 Nov

2011 (see r. 2(c));

r. 6-8, 9(1) and (2), 10-12 and

13(3)-(7): 1 Dec 2011 (see r. 2(b)

and Gazette 8 Nov 2011 p. 4673)

District Court Amendment Rules 2013 26 Jul 2013

p. 3407-47

r. 1 and 2: 26 Jul 2013

(see r. 2(a));


19 Aug 2013 (see r. 2(b))

Reprint 2: The District Court Rules 2005 as at 6 Dec 2013 (includes amendments listed

above)


Other notes Notes


Citation Published Commencement


(No. 2) 2013

31 Dec 2013

p. 6549-62

r. 1 and 2: 31 Dec 2013

(see r. 2(a));


20 Jan 2014 (see r. 2(b))


(No. 2) 2016

21 Jun 2016

p. 2201-2

r. 1 and 2: 21 Jun 2016

(see r. 2(a));


22 Jun 2016 (see r. 2(b))


(No. 3) 2017

2 Feb 2018

p. 316-17

r. 1 and 2: 2 Feb 2018 (see r. 2(a));


3 Feb 2018 (see r. 2(b))

District Court Amendment Rules 2018 16 Mar 2018

p. 918-21

r. 1 and 2: 16 Mar 2018

(see r. 2(a));


22 Mar 2018 (see r. 2(b))


(No. 2) 2018

7 Sep 2018

p. 3183-91

r. 1 and 2: 7 Sep 2018

(see r. 2(a));


21 Sep 2018 (see r. 2(b))


(No. 2) 2019

31 Dec 2019

p 4675-6

r. 1 and 2: 31 Dec 2019

(see r. 2(a));


1 Jan 2020 (see r. 2(b))

District Court Amendment Rules 2020 SL 2020/18

24 Mar 2020

r. 1 and 2: 24 Mar 2020

(see r. 2(a));


25 Mar 2020 (see r. 2(b))

Other notes

1 The Legal Practice Act 2003 was repealed by the Legal Profession Act 2008.

Under the Legal Profession Act 2008 s. 630(1), a reference in an Act or document

to the Legal Practice Act 2003 may, if the context permits, be taken to be a

reference to the Legal Profession Act 2008.

Under the Legal Profession Act 2008 s. 630(2), a reference in an Act to a lawyer

or legal practitioner may, if the context permits, be read as a reference to an

Australian lawyer. 2

Repealed by r. 72 which has been omitted under the Reprints Act 1984 s. 7(4)(f). 3 The Legal Profession Act 2008 s. 310 establishes a Legal Costs Committee. See

also note 2.


Defined terms


Defined terms

[This is a list of terms defined and the provisions where they are defined.

The list is not part of the law.]

Defined term Provision(s)

A .................................................................................................................. 45E(4)

Act................................................................................................... 62, 65, 71A(1)

address for service ................................................................................................ 3

appealable decision ............................................................................................. 49

appearance ..................................................................................................... 31(1)

application ........................................................................................................... 65

audio link .............................................................................................................. 3

B ................................................................................................................... 45E(4)

case ....................................................................................................................... 3

case management direction ................................................................................. 23

claimant ............................................................................................................... 65

commencement ................................................................................................... 73

concluded .................................................................................................... 61A(1)

court record ...................................................................................................... 71F

department ............................................................................................................ 3

DPP ..................................................................................................................... 65

ECMS ................................................................................................................... 3

enforcement order ............................................................................................... 23

expert medical evidence ................................................................................... 47B

file ......................................................................................................................... 3

file and serve ......................................................................................................... 3

file electronically .................................................................................................. 3

Form ...................................................................................................................... 3

former rules ......................................................................................................... 73

former security for costs provision ............................................................. 61A(1)

health professional ................................................................................................ 3

Inactive Cases List ........................................................................................... 43A

lawyer ................................................................................................................... 3

lay registrar ........................................................................................................... 3

legally qualified registrar ...................................................................................... 3

mediator .............................................................................................................. 23

medical expert ................................................................................................. 47B

medical report .................................................................................................. 47B

personal injuries action ......................................................................................... 3

personal injury case.......................................................................................... 47B

primary court....................................................................................................... 49

primary court case .......................................................................................... 52(1)

record .................................................................................................................... 3

registered user ....................................................................................................... 3

registry .................................................................................................................. 3


Defined terms


relevant registry .................................................................................................... 3

report ............................................................................................................ 45E(1)

respondent ............................................................................................. 65, 71B(3)

RSC ....................................................................................................................... 3

rules of court ......................................................................................................... 3

Scott Schedule............................................................................................. 45D(1)

section ............................................................................................. 62, 65, 71A(1)

security for costs deposit ............................................................................. 61A(1)

serve ...................................................................................................................... 3

settle ...................................................................................................................... 3

trial date ........................................................................................................... 45B

udge....................................................................................................................... 3

video link .............................................................................................................. 3

WCIMA ............................................................................................. Sch. 1 cl. 8A

WCIMA appeal ................................................................................................... 49

working day .......................................................................................................... 3